Case of the Day – Tuesday, December 21, 2021


I’ve told you before to beware of what lurks in the dark and malevolent corners of your deed. Today, we’re going to look at a cautionary tale.

No one really thinks about the wording of easements when the power company or the gas folks come by with some standard form clipped to a dollar bill. The utility reps tell you that it’s no big deal because the language is standard, no one can change it, and anyway, all your neighbors have signed off on the same form, so what’s the big deal?

I’m not a public utility, so I’ll tell you what the big deal is. Or, better yet, show you.

Consider New Jersey. Please. Just for right now. In East Brunswick, New Jersey (city motto: “We’re located at Turnpike Exit 9”), a gas transmission company had acquired an easement for a 3-1/2 foot wide natural gas transmission pipe through some unimproved land back in 1967. The property, once used only for mob hits and toxic waste dumping (just kidding), was sold sometime after the easement was granted. At some point, a housing development was over a 42” high-pressure gas line the company had buried inside the easement.

The utility had always patrolled its pipeline, and it was well aware of the 19 oak trees growing along the street 40 inches above the pipe. But when new evidence showed that tree roots could cause catastrophic pipeline failures, the gas utility announced it intended to cut down the trees.


And sometimes, we retaliate by closing bridge lanes

The property owners, who probably had never bothered to read all of the boring stuff in their deeds that followed the “Know all Men by These Presents …” part, were outraged. They complained that the gas utility shouldn’t be allowed to cut the trees now because it hadn’t ever bothered to before. This argument is called “laches,” based on the old legal maxim that “equity aids the vigilant.” Or, as some like to say, “Don’t sit on your rights.” The owners argued that the gas company had ever tried to remove the trees before, and – 40 years after obtaining the easement – it should not be allowed to do so now.

What’s more, the owners contended, the gas company couldn’t really prove the 19 trees were hurting anything.

Horrors! Imagine buying land subject to an easement, only to have the easement holder actually try to exercise the easement rights! As they say in New Jersey, “Oh, the humanity!” The gas utility carefully showed how new techniques had determined that tree roots could weaken high-pressure supply lines and in fact had caused some spectacular failures. The property owners could only muster an expert who opined that the tree roots in question probably wouldn’t grow that deep.

The Court of Appeals agreed with the trial judge. The gas company didn’t have to show that the tree roots were damaging the line, only that it had a reasonable basis for keeping roots away from its pipe. The evidence easily did that. As for the laches argument, the Court agreed that the nonuse of an easement in New Jersey didn’t lead to loss of the right. Plus, the Court said, the gas company had a good reason for not seeking to remove the trees until it did, as science had only recently determined that tree roots and gas pipelines didn’t mix.

Township of East Brunswick v. Transcontinental Gas Pipeline Corp., 2008 N.J. Super. Unpub. LEXIS 27, 2008 WL 2627688 (N.J.Super.A.D., July 7, 2008). Transcontinental (“Transco”) operates an interstate natural gas transmission system that runs from the southern Atlantic seaboard to New York City. One of its main lines, the Lower Bay Line, runs across East Brunswick and along Timber Road. This 42” high-pressure gas line was built in 1967.

When trees fall on power lines, the lights go off for a few hours. When gas transmission lines are breached by tree roots, the misadventure that follows is usually much more energetic.

When trees fall on power lines, the lights go off for a few hours. When gas transmission lines are breached by tree roots, the misadventure that follows is usually much more energetic.

Transco holds a 100’ wide easement for the pipeline under a right-of-way agreement “for the purposes of laying, constructing, maintaining, operating, repairing, altering, replacing and removing from time to time one or more pipelines … together with such other rights as may be necessary or convenient for the full enjoyment or use of the rights herein granted [including] the right to enter upon the right of way and easement … at such times as Grantee may elect … and the right from time to time to keep said right of way free from trees, undergrowth and all other obstructions that may endanger or interfere with the construction, operation and maintenance of Grantee’s pipe lines[.]”

The owner sold the property subject to the easement, and in the 1980s, it was developed into a residential community of single-family homes. The width of the easement covers the width of Timber Road, the sidewalks, and portions of the residents’ front yards. The pipeline is buried 40” deep and runs along one side of the street in the public space between the sidewalk and the curb.

Nineteen shade trees were planted sometime during the 1980s between the sidewalk and the curb so that they were growing directly above the pipeline. Transco knew of the existence of these shade trees because it regularly inspected and monitored the pipeline. Natural gas pipelines must be properly maintained and monitored because any rupture can cause severe damage. Transco monitors the pipeline and has an extensive program for on-site inspection of the Lower Bay Line pipeline right of way. An inspector walks directly over the pipeline at least once a year to perform ground tests to determine if natural gas is leaking. The right of way is patrolled almost daily by vehicle. It is inspected once a week by air to determine if any unauthorized excavation occurs in the area and detect early signs of leakage.

Concerned about damage to the pipeline’s protective coating by tree roots, maintaining a clear line of sight along the pipeline, and preventing any delays in reaching the pipeline in an emergency, Transco tried to remove the 19 trees above the pipeline as part of a larger effort to remove trees above all of its pipelines in the area. The residents sued for a temporary restraining order enjoining Transco from removing the trees. Transco argued it had an absolute legal right to remove the trees under the right-of-way easement. Plaintiffs argued there was a genuine issue of material fact whether the trees endangered the pipeline and whether their removal was reasonably necessary for Transco’s enjoyment of its easement right. No evidence was adduced that the tree roots were currently damaging the pipeline, but there was evidence of potential harm.

A 2004 investigation revealed metal losses in the pipe walls ranging from 6% to 15% at various locations along Timber Road. Additional testing in 2005 uncovered pipeline coating defects or interruptions at some of the same locations where the metal anomalies were discovered, but neither inspection definitively determined that tree roots were the cause of the damage. Finding that Transco need not wait for actual damage to its pipeline before exercising its express easement rights, the judge concluded, “the record indicates that tree roots may damage the protective coating of the pipeline …. [and][f]urther, efforts to keep the protective coating of the pipe intact [are] part of the necessary maintenance program for a pipeline.” The judge also reasoned that while the pipeline’s path is marked with yellow markers, the presence of the trees detracts from the area’s appearance as a right of way and may lead to third-party interference with the pipeline, one of the biggest causes of pipeline accidents. The court granted summary judgment for Transco and the plaintiffs appealed.

easement150908Held: Transco had the right to remove the trees. The Court said the primary rule of construction is that the intent of the conveyor is normally determined by the language of the conveyance read as an entirety and in the light of the surrounding circumstances. Here, the easement plainly and expressly gave Transco the right to remove trees when they may endanger or interfere with the construction, operation or maintenance of the pipeline. The language specifically stated the grantee had “the right from time to time to keep said right of way free from trees, undergrowth and all other obstructions that may endanger or interfere with the construction, operation, and maintenance of Grantee’s pipelines….” The easement also clearly gave Transco the right to remove trees if they interfere with Transco’s immediate access to the right of way. The plain language of the easement gave Transco the express right to remove trees and did not require actual damage to or interference with pipeline operations before the trees get cut. The easement permitted preventive action to avoid potential harm, disruption, or interference with the operator’s pipeline.

The uncontroverted evidence showed that the pipeline and pipeline coating along Timber Road has been damaged, and although there was no proof the damage has been caused by tree roots, other sections of Transco pipelines and pipeline coating in New Jersey had been damaged by tree roots. The Plaintiff had no proof to the contrary, but instead, their expert only posited that “the roots are not likely to interfere in any way with the pipeline;” the root systems are “generally non-invasive;” and root growth is “typically ” confined to the upper two to two-and-one-half feet beneath the ground surface. The proof didn’t foreclose the possibility that the tree roots may grow deep enough to interfere with the pipeline, as they had in other sections of Transco’s pipeline.

Plaintiffs also contended Transco was barred from taking affirmative action by the equitable doctrine of laches, because it waited so long to exercise its easement rights. But the mere non-use of an easement cannot destroy the rights granted by it. Rather, clear and convincing evidence of the intent to abandon the easement rights must be shown. In this case, there was no evidence that Transco intended to abandon its easement rights; therefore, any reliance placed by plaintiffs on Transco’s inaction was unreasonable. Also, there was reasonable justification for Transco’s inaction over the years, having been unaware of the potential danger of the tree roots at the time of planting. The evidence showed that since the trees were planted, there have been three accidents nationwide related to the rupture of natural gas pipelines and three incidents in this State where Transco has discovered that tree roots have damaged pipelines. The Court said that the fact that action had not been taken earlier did not preclude preventive action now, nor require waiting for actual damage to occur.

The Plaintiffs simply did not demonstrate how their interest in preventing the removal of the trees outweighed Transco’s taking preventive measures in the public interest.

– Tom Root


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