Daily Development for Thursday, February 16, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu

EASEMENTS; RIGHTS OF SERVIENT OWNERS:  : Where owner of a pipeline easement has an express right to “inspect” the pipeline, but has tolerated trees growing withing the easement for more than 40 years without objection, the pipeline easement owner may not remove the trees to facilitate its ariel inspection of the pipeline unless it can demonstrate that it has no other way to make reasonable use of its easement rights.

Township of Piscataway v. Duke Energy, 389 F.Supp.2d 607 (D. N.J. 2005); September 20, 2005.

A pipeline company and its predecessors held easements to run three pipelines through a neighborhood, on municipal property.  The easements gave the pipeline company "the express power to, inter alia 'operate,' 'inspect,' and 'maintain' the pipelines." 

With the knowledge of the pipeline company and its predecessors, and without objection, about eighty trees had been planted forty years earlier along the easement.  When the pipeline company notified the municipality and various homeowners that it would be "removing trees, limbs, and foliage from the area of the easement," the municipality and the neighbors objected. 

The company and its predecessors  had never before asserted a legal right to remove the trees.  By consent order, five trees were removed.  A law suit made its way to federal court where the pipeline company argued that it was "necessary to remove the trees in order gain access to the pipelines in the event of emergency.  [The pipeline company] posit[ed] that the trees may be in the way of a vehicle getting to a particular location or a tree trunk/root may be in the way of access to a damaged part of the pipeline." 

Further, the pipeline company utilized arial surveillance "to observe the property under which its pipelines lay.  If the surrounding vegetation looks 'distressed,' it [was] a signal that the pipeline may have a leak."  The pipeline company also routinely surveyed the pipeline route by vehicle, but argued that arial surveillance was the most effective and least intrusive means to do a proper inspection.  There was no evidence, however, that airplanes could not see through the tree's branches and the pipeline company "proffer[ed] no facts to demonstrate that land surveillance, in combination with the warning signs against construction on [the parallel road] (required by law) and the [municipality's] ability to regulate construction on its property, [was] ineffective to give [the pipeline company] notice regarding safety and maintenance of the pipelines."

Although the pipeline company argued that with the trees in place, it could not enjoy its "rights under the Easement 'to operate,' 'inspect,' or 'maintain' the pipelines unless all of the trees" were removed, it could "point to no particular tree or trees removal that might alleviate [its] concern."  It couldn't show that other methods of enjoying its easement rights were ineffective.  The Court was particularly comforted that there was no evidence "as to why [it had] suddenly become necessary to remove [the trees] in order to enjoy the easement's terms."  It pointed out that the pipeline company and its predecessors "[had] complied with the law and exercised safety precautions for forty years since the pipelines were installed and the trees planted."  Consequently, it was difficult for the pipeline company "to assert 'reasonable necessity' to fundamentally alter a servient estate where years were allowed to pass under the status quo with no complaint regarding enjoyment of the ea

sement."

As a result, the Court barred the pipeline company from removing all of the trees, holding that "[t]here must be real facts to support the safety argument before [there could be a] fundamental alteration of [the street's] environment, destruction of the ecology, and reduction in [the municipality's and the neighbor's] property values."  The Court believed that "[a]s the trees [were] decades old, they [were] essentially irreplaceable." 

On the other hand, the Court pointed out that the municipality and the neighbors were "now on notice that these trees could, in the future, present a demonstrable safety risk sufficient to justify removal."  Nevertheless, it insisted that the pipeline company "must first attempt to enjoy [its] easement rights in ways besides the one that [it] find[s] most convenient to [it], ..., and must present the requisite evidence of reasonable necessity for enjoyment of the Easement's terms." 

Further, the Court believed that the doctrine of laches would also have barred the pipeline company's claim, absent extrinsic circumstances.  The pipeline company did not dispute that it, or its predecessors-in-title, "knew that trees would be planted over the pipelines as part of [a] residential development and that [they] did not object to the planting of the trees."  Instead, the pipeline company waited "nearly forty years to assert an alleged necessity to cut down trees."  Because of the length of the delay and the lack of justification or any "evidence regarding changed circumstances," the Court found the pipeline company's delay inexcusable and prejudicial to the municipality and the neighbors.

Comment 1: Note that in this case we are not faced with the dominant holder seeking enforcement of the easement through injunction, but rather the servient owner seeking such protection.  This is an easement owner trying to make use of its rights and being stopped by the servients.  Thus, what we really have necessarily is a construction of the easement itself (perhaps as modified by laches or waiver.)

Comment 2: The editor suspects that the history of usage does little more than define what constitutes “necessary” inspection and maintenance operations.  But does this mean that the owner of the easement can’t respond to  newer economic realities or technological realities?  Why not? 

Comment 3: Most likely, the court is just being Solomonic here, hoping that the parties themselves will provide an adequate answer to the problem.  The pipeline owner had the right, but perhaps through making things a little more difficult for the owner, it will come to a more palatable resolution of the problem of inspection and maintenance.

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