ROBERT C. STRAHM, ET AL., PLAINTIFFS-APPELLANTS, v. BUCKEYE PIPE LINE COMPANY, L.P., DEFENDANT-APPELLEE.
CASE NO. 1-10-60
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
March 14, 2011
[Cite as Strahm v. Buckeye Pipe Line Co., L.P., 2011-Ohio-1171.]
Appeal from Allen County Common Pleas Court Trial Court No. CV 2009 1319 Judgment Reversed and Cause Remanded
Bernard K. Bauer for Appellant
Paul J. Coval for Appellee
{¶1} Plaintiffs-Appellants, Robert C. Strahm and Donna J. Strahm (“Appellants” or “the Strahms“), appeal the decision of the Allen County Court of Common Pleas granting partial summary judgment in favor of Defendant-Appellee, Buckeye Pipe Line Company, L.P. (“Buckeye“). The Strahms maintain that the pipe line easements across their land did not contain any explicit language that would permit Buckeye to clear all the trees, shrubs and vegetation from the easements without providing compensation. For the reasons set forth below, the judgment is reversed.
{¶2} The Strahms filed an action for declaratory judgment and damages regarding a dispute concerning the duties and responsibilities of the parties under four pipe line easements affecting two adjacent parcels of property owned by the Strahms. The dispute in question began when Buckeye cleared all of the trees, shrubs and vegetation from an area on the Strahms’ two properties which included, but may not have been limited to, the pipeline rights-of-way.
{¶3} In 1984, Mr. Strahm purchased two parcels of land (the “northern parcel” and the “southern parcel“) in Richland Township. At the time of purchase, each piece of property was subject to separate pipe line easements originally granted to Sohio Pipe Line Co. (“Sohio“) and Trans-Ohio Pipeline Co. (“Trans-
{¶4} In 1947, Sohio obtained blanket easements over both parcels to “lay, maintain, operate, repair, replace and remove a pipe line and all necessary fixtures, equipment and appurtenances thereto ***.” The easements also specified the rights to the premises that were reserved to the grantors of the right-of-way and their successors:
Grantor and Grantor‘s heirs and assigns reserve the right fully to use and enjoy the said premises except insofar as such use and enjoyment shall be inconsistent with the exercise by the Grantee of the rights herein granted to it.
(Sohio 1947 Easement.) The Sohio easements also provided for compensation to the landowner in the event of damages as a result of exercising the easement rights:
The Grantee *** agrees to bury said pipe line so that it will not interfere with the cultivation of the land and also to pay any damages to crops, buildings, drain tile, fences and timber arising from the exercise by the Grantee of any of the rights herein conferred upon it.
(Id.)
{¶5} Sometime later, in 1973, Trans-Ohio also obtained two separate easements to “construct, lay, maintain, operate, alter, repair, remove, change the size of, and replace a pipe line and appurtenances thereto ***” over both the northern and southern parcels. These easements provided for a right-of-way
Grantors are to fully use and enjoy the said premises, except for the purposes granted to the said Grantee and provided that the said Grantors shall not construct nor permit to be constructed any house, structures or obstructions on or over, or that will interfere with the construction, maintenance or operation of, any pipe line or appurtenances constructed hereunder, and will not change the grade over such pipe line.
(Trans-Ohio 1973 Easement.) These easements specified that Trans-Ohio would be responsible for the payment of damages to “crops, timber, or fences” from the construction of the pipe lines and, thereafter:
to pay such damages which may arise to growing annual crops or fences from the maintenance, alteration, repair, removal, change of the size, or replacement thereof.
(Id.)
{¶6} After he purchased the properties, Mr. Strahm entered into an agreement with the National Conservation Reserve Program to plant trees and shrubs on his property in order to create a wildlife habitat and help preserve natural resources. Between 1988 and 1994, Mr. Strahm planted specified grasses as well as dogwoods, white pines and ash trees, pursuant to the recommendations
{¶7} However, on November 14, 2001, Buckeye‘s Regional Right-of-Way Agent, Martin White (“Mr. White“) sent Mr. Strahm a letter documenting the fact that the easements contained substantial pine and hardwood trees. The letter stated that Buckeye had attempted to clear the right-of way in 1997 and again in 2001, but that the Strahms had refused to allow the work to be done. The letter stated that “[t]rees are a non-permitted use of the right-of-way as they are substantial impediments for access to and workspace around the pipe lines during either routine or emergency pipe line maintenance work.” (Plaintiff‘s Ex. 4 to the 2009 Dep. of Mr. White.) Mr. White was going to “review the easements more thoroughly” and complete a report before the end of the year.
{¶8} On November 21, 2001, and again on July 30, 2002, Mr. Strahm sent letters to Mr. White asking Buckeye to send him “all easements relating to [my properties] including all restrictions and regulations involving these easements.” In his deposition, Mr. White testified that he did not recall that he had ever provided Mr. Strahm with the information he had requested.
{¶9} On October 1, 2007, Buckeye sent the Strahms a letter informing them of Buckeye‘s intention to clear the trees and vegetation from the 30-foot wide easements (15 feet on each side of the pipe line) by the latter part of the month,
You purchased this property subject to Buckeye‘s easement rights. A ‘nature preserve,’ Pheasants Forever habitat, and commercial tree nursery activities are contrary to the spirit and intent of the easement grant and as such are non-permitted uses of the right of way. *** Consequently, the trees/vegetation have grown into substantial impediments for the safe and practical operation and maintenance of the pipe line.
(Id.) The letter stated that it was intended as a “courtesy notification,” not as “a negotiation or debate of easement rights.” (Id.)
{¶10} On October 23 and 24, 2007, Buckeye removed all of the trees and brush, and completely mowed the fields in the easements to prevent the potential regrowth of seedlings. Mr. White explained why they mowed all of the vegetation, in addition to just removing the trees and shrubs:
Right of way clearing is preventive maintenance. The longer we delay, the worse it becomes; and so, we wanted to mow this at this point in time -- as a matter of vegetation maintenance.
(White Dep. at pp. 23-24.)
{¶12} Buckeye denied all of the Strahms’ assertions and filed a motion for partial summary judgment on June 15, 2010.2 Buckeye argued that the easements
{¶14} On August 2, 2010, the trial court issued its decision granting partial summary judgment in favor of Buckeye, finding that (1) both easements gave Buckeye the right to remove trees, shrubs and other vegetation from the rights-of-way as an exercise of their “maintenance” rights; and, (2) the Trans-Ohio
{¶15} The Strahms timely appeal and raise the following two assignments of error for our review.
First Assignment of Error
The Trial Court committed error prejudicial to the [Strahms] as a matter of law, by entering a declaratory judgment in favor of [Buckeye] which permitted it to remove trees, shrubs and vegetation to facilitate aerial inspection of pipeline rights of way, without compensation, when the Trans-Ohio easements which granted rights to it did not contain any explicit language regarding its proposed right of way clearing work.
Second Assignment of Error
The Trial Court committed error prejudicial to the [Strahms] as a matter of law, by entering a declaratory judgment in favor of [Buckeye] which permitted it to remove trees, shrubs and vegetation to facilitate aerial inspection of pipeline rights of way, when the Sohio easements which granted rights to it did not contain any explicit language regarding its proposed right of way clearing work.
{¶17} Appellate courts review decisions on summary judgment de novo, viewing the facts as most favorable to the non-moving party and resolving any doubt in favor of that party. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N .E.2d 241. Because it is a procedural device that terminates litigation, summary judgment must be awarded with caution. Ormet Primary Aluminum Corp. v. Employers Ins. of Wausau, 88 Ohio St.3d 292, 2000-Ohio-330, 725 N.E.2d 646.
{¶18} Summary judgment is appropriate where there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law.
{¶19} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element of the nonmoving party‘s claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264. The moving party does not discharge this initial burden under
{¶20} If the moving party meets this burden, the non-moving party then has a reciprocal burden to establish the existence of genuine issues of material fact. Id. “When reviewing a trial court‘s ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court. Mergenthal v. Star Banc Corp. (1997), 122 Ohio App.3d 100, 103, 701 N.E.2d 383.
{¶22} An easement is an interest in the land of another that entitles the owner of the easement (the dominant estate) to a limited use of the land (the servient estate). Crane Hollow, Inc. v. Marathon Ashland Pipe Line, LLC (2000), 138 Ohio App.3d 57, 66, 740 N.E.2d 328; Alban v. R.K. Co. (1968), 15 Ohio St.2d 229, 231, 239 N.E.2d 22, 23-24. When an easement is created by an express grant, as in this case, the extent and limitations upon the dominant estate‘s use of the land depend upon the language in the grant. See Alban at 232, 239 N.E.2d at 24; Columbia Gas Transm. Corp. v. Bennett (1990), 71 Ohio App.3d 307, 318, 594 N.E.2d 1, 7-8. When the terms in an easement are clear and unambiguous, a court cannot create a new agreement by finding an intent not expressed in the clear language employed by the parties. Alexander v. Buckeye Pipe Line Co. (1978), 53
{¶23} In their complaint, the Strahms allege that the explicit language in the easements grants Buckeye the right to utilize the easements to “maintain *** a pipe line.” (Emphasis added.) However, there is no explicit language giving Buckeye the right to maintain the easements or to enter upon the right-of-way for purposes other than those specified. Even Mr. White acknowledged that the easements do “not contain any explicit language regarding Buckeye‘s proposed right-of-way clearing work.” (Complaint, Ex. 5; see also White Dep., p. 30.) It was undisputed that no maintenance or operational work was being done on the pipe lines when the clearing was done.
{¶24} However, Buckeye maintains that the removal of all of the trees and vegetation from the entire easement area is necessary for its proper maintenance of the pipe line. Mr. White has indicated that clearing vegetation is part of
{¶25} The question as to what constitutes maintenance of a pipe line under the Trans-Ohio and Sohio easements appears to raise a genuine issue of material fact that would preclude summary judgment. In fact, the trial court even noted in its judgment entry that “as the Third District stated in Voisard v. Marathon Ashland Pipe Line, these are factual inquiries ***. (Aug. 2, 2010 J.E., pp. 6-7, Voisard v. Marathon Ashland Pipeline, LLC., 3d Dist. No. 9-05-49, 2006-Ohio-6926, ¶7, stating “the issues presented in this type of case are questions of fact, which must be resolved on a case-by-case basis.“)
{¶26} Buckeye has set forth numerous arguments as to why it should be permitted to clear the easements as it wishes. However, we do not find that Buckeye has pointed to any admissible facts in the record to support the contention that such clearing constitutes necessary “maintenance” under the terms of the relevant easements and the facts in this case. Although not necessarily required to do so, neither party submitted any affidavits or other types of
{¶27} For example, Buckeye has asserted that the trees had to be removed because their roots could interfere with the pipe line. While that might certainly be one reason to justify Buckeye‘s removal of the trees, we did not find any evidence anywhere in the record as to how deep the pipe lines were buried, how deep the roots of the trees extended, or whether there was any actual or likely infringement upon the pipe line by any tree roots. In fact, none of Buckeye‘s assertions were supported by the type of admissible summary judgment evidence that would establish the necessity of clearing the easements as a function of “maintaining a pipe line.”
{¶28} Buckeye also made many legal arguments, citing cases where courts determined that a pipe line company was entitled to remove trees and vegetation from the rights-of-way in order to maintain the pipe lines. However, many of
{¶29} Furthermore, other cases cited by Buckeye were distinguishable in that the relevant facts and issues were different and/or the controlling language in the easements was different. For instance, in Voisard v. Marathon, supra, this Court held that Marathon could maintain the pipe line as it believed was necessary. 2006-Ohio-6926 at ¶8. However, the language in that particular easement provided Marathon “‘the right of way to lay, maintain, operate and remove a pipe line, if the same shall be thought necessary by said grantee[.]‘” (Emphasis sic.) Id. Buckeye‘s easements do not contain such broad language. In another case, the easement originally contained language similar to that in the easements before us now. However, several decades later, an amended easement was negotiated and the new language prohibited the planting or permitting of any trees or non-shrubbery woody growth anywhere over the specified right-of-way. Panhandle Eastern Pipeline Co. v. Howey, 6th Dist. No. L-01-1037, 2001 WL 1155838, 1. The Strahms’ easements have not been renegotiated to include any language prohibiting trees and non-shrubbery growth. And, in a case highly relied
{¶30} Buckeye points to some cases where courts permitted tree removal in order to allow for aerial inspection of the pipe line. See, e.g., Voisard v. Marathon, supra. But, see, Lakewood Homes v. B.P., 1999-Ohio-851 (“[the pipe line company] did not present any evidence to the trial court that demonstrates that its maintenance and inspection could not be carried out in a manner which did not impose additional burdens on Lakewood Homes’ servient property.“) While we acknowledge that the necessity of aerial inspection may, under certain circumstances, require a pipe line company to clear some trees from an easement, the testimony concerning that need in this case was ambiguous and raised questions of fact. Mr. White stated that they “have to patrol” the pipe line, and it could be accomplished by walking it or by aerial inspection. (White Dep., pp. 24-25.) Aerial inspection was just one of “several reasons” why Buckeye maintained the rights-of-way. (Id.) There was also testimony that another pipe line company also had an easement through the Strahms’ properties and that company had not cut down trees in order to patrol their pipe line. (Id.)
{¶32} And, concerning the issue of the appropriate dimensions of an easement, we do not find where the width of the 1947 Sohio right-of-way was delineated in the easement. This is an issue of fact that the trial court must determine in order to ascertain whether Buckeye removed trees and vegetation beyond the bounds of the easements if those boundaries were not specified. See,
{¶33} Buckeye asserts that the easements not only give Buckeye the right to remove timber during the construction of the pipe line, but that Buckeye may also remove timber during maintenance of the pipe line. We agree. However, the record clearly shows that Buckeye was not doing any maintenance on the pipe line at the time of the clearing. Many of the cases relied upon by Buckeye held that it was permissible to remove trees from an easement, but they involved issues that arose when the easement grantee sought to repair or do specific maintenance on a pipe line. See, e.g., Crane Hollow, supra, (where the grantee wanted to repair and reopen a pipe line which had been capped several years earlier); Rueckel v. Texas Eastern Transm. Corp., 3 Ohio App.3d at 156, 444 N.E.2d at 80 (the trees did not create a problem until November 1977, when Texas Eastern was engaged in the installation of a cathodic protection system designed to protect the pipe lines from corrosion.)
{¶34} We also note that the trial court prefaced its summary judgment decision with the statement that “It should be noted that this case is not and should not be decided in a vacuum or in isolation. Rather, we are a nation dependent upon oil. ***” (Emphasis added.) The trial court then referenced the Gulf of
{¶35} If there was evidence in the record that the vegetation on the easements was interfering with Buckeye‘s actual maintenance of the pipe line, Buckeye would have the right to remove the offending vegetation. However, we do not grant summary judgment on mere speculation. The burden of showing that
{¶36} Having found error prejudicial to the appellant herein in the particulars assigned and argued, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Judgment Reversed and Cause Remanded
PRESTON, J., concurs.
/jnc
ROGERS, P.J., concurs separately.
{¶37} I concur with the majority opinion, but write separately to stress my position that pipeline cases in Ohio have given too much latitude to the pipeline companies to unilaterally interpret and expand their “rights” under easements. The usual standards for interpretation of the contracts for easements should be applied in all such cases and not expanded without compensation simply because some new Federal regulation imposes new duties upon the companies. Nor should the right to clear trees and brush be expanded without compensation simply because some new invention, such as an airplane, makes inspection easier and/or
I am troubled by what I perceive to be a departure from general contract principles in pipeline cases. In general, these departures routinely favor pipeline companies and grant rights which were clearly not within the reasonable contemplation of property owners at the time the easements were signed. One of the cornerstones of contract law is to ascertain the intent of the parties at the time they entered into the contract. I do not believe that, at the time these parties entered into the agreement, either contemplated federal regulation of gas companies to the extent that they are regulated today. Nor do I believe the parties contemplated the use of aerial surveillance to achieve the regulatory mandates. On that issue, I would follow this court‘s holding in Lakewood Homes, Inc. v. BP Oil, Inc., 3d Dist. No. 5-98-29, 1999 Ohio 851.
Voisard v. Marathon Ashland Pipeline, LLC., 3d Dist. No. 9-05-49, 2006-Ohio-6926, ¶12 (Rogers, J., Dissenting).