Daily Development for Monday, October 21, 2007 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 NUISANCE; STANDING: A neighboring landowner has standing to assert that a dominant tenant/pipeline company is causing a nuisance by cutting down trees over a pipeline easement in a public road even after that tenant has obtained the consent of the servient owner/township. Township of Piscataway v. Duke Energy, 488 F.3d 203 (3rd Cir. 2007) A group of homeowners initiated litigation to prevent a utility company from removing fifty shade trees planted along a public street in a municipality. Predecessors in title to the homeowners in the lawsuit had in 1944 granted a utility company and its successors an easement to lay, operate, and maintain natural gas pipelines. The area of the easement was apparently not limited - the pipes could be laid anywhere across the servient tract. The pipeline easement grants (there were several) indicated that the company would bury the pipelines at a sufficient depth not to interfere with cultivation of soil and that it would pay for any damages to growing crops, timber resulting from maintenance and operation of the lines. Later, subsequent owners of the servient tract desired to develop it into homesites. In 1963, they granted a third easement to the pipeline company for another line, but also narrowed the easements to a sixty foot wide right of way. Apparently this sixty foot strip then was conveyed to the local township for the creation of a public street above the pipelines. Thus the pipeline easement area became a long public street. Along the edge of the street were a large number of shade trees, some as high as seventy five feet. Homeowners of the residences built thereafter on the balance of the original tract came to view the trees as extensions of their front yards. But it should be emphasized that, according to the court, the land on which the trees were located belonged to the municipality. The pipeline company originally had sought the removal of eighty trees along the street. It argued that it was difficult to monitor the pipeline for leaks because the trees impeded the company from aerially surveying the area to look for evidence of gas leaks, usually disclosed by discolored or dying plant life. Further, the company argued that the coating that it had used on the pipes originally was susceptible to injury from the tree roots. A lawsuit ensued, in which both the township and neighbors joined to prevent the removal of the trees. They obtained a preliminary injunction preventing the removal of the trees. The case was removed to federal court, which refused to remove the preliminary injunction pending a trial of the facts. Before trial, however, the township and the company settled the case and agreed to the removal of fifty-five trees and the future removal of any trees that exceeded eight inches in diameter. The neighboring landowners, however, viewed the trees as adding important aesthetic value to their properties, and continued the lawsuit. The company challenged their standing to continue in the lawsuit without the township. The trial court found that the neighbors had no right to raise the claim of trespass (note the trees were not on the neighbors land), but held that the neighbors had standing to raise claims of breach of easement and nuisance. The federal trial court ultimately found that the company had not mustered sufficient evidence to support its claim that the removal of the trees was reasonably necessary for the maintenance of the pipeline and further that such removal was barred by the doctrine of laches. The company appealed to the Third Circuit Court of Appeals. The court of appeals panel affirmed the trial courts conclusion that the neighbors had standing to bring the action. The appeals court noted that, for standing to exist, the proponent must show that it has or will suffer an actual injury to a legally protected interest and that the conduct challenged in the lawsuit has or will cause such injury. It noted further, under the prudential notions of standing, that courts ought not to be used to redress the claims of others.The plaintiff generally must assert his own legal rights and interests, and cannot rest h is claim to relief on the legal rights or interests of third parties. The court began its analysis be reiterating that the presence of the trees added value to the neighbors property. It further noted that the trees are effectively irreplaceable. But the court still had to conclude that injury to the trees was an injury to the legally protected rights of the neighbors. So the court went on to analyze whether the neighboring homeowners had a cause of action cognizable under New Jersey law protecting them from the removal of the trees. The court concluded that the restriction in the easement grant - that the pipeline owners were to bury the pipeline at a depth so as not to interfere with the cultivation of the soil - was intended to benefit the owners of the residences on the land adjacent to the easement. Note that many of these owners in fact owned land that was part of the originally tract to which the easement appurtained, but that the easement was narrowed before they obtained their interests. In this case, the restrictions set forth in the Easement grant were clearly intended by the original grantor, the homeowners predecessors-in-title, to benefit the land by ensuring that the pipelines would not unduly interfere with the cultivation and development of the property. The homeowners took title to their homes with notice of the easement grant, and the rights and restrictions set forth in the grant. It is reasonable to infer from the drawing attached to the 1963 agreement [between the developers and the pipeline company] that when the [pipeline company] executed the agreement, it was aware that the owners of the property- three real estate development companies - planned to build a residential neighborhood through which the pipelines would run. Based on these facts, the individual homeowners have a cause of action under New Jersey Law. Comment 1: The editor finds the decision - well - stunning. The owner of the property on which the trees were growing - the township - has decided that it will permit the trees to be removed. But the neighboring owners claim that they have a legal right to restrict such removal. The basis of the right is a 1963 agreement - admittedly drafted in the context of a proposed residential development adjacent to the pipeline easement - that says nothing about restrictions on pipeline activity for the purposes of protecting residential development (or if it does, the court neglects to tell us). All we are told the 1963 agreement contained was an extension of the rights and restrictions granted in the original easement, a 1940's instrument entered into when the servient land was all agricultural in nature. There is not on whit of evidence adduced here to suggest that there was any intent on the part of either party to the 1963 agreement to confer a right on neighboring landowners. Consider, for instance, if the city elected to remove the trees itself. Could the neighbors object? Of course they could politically. But would they have standing to restrict the cutting of trees on neighboring property because the loss of shade or other aesthetic benefits would constitute a nuisance? If so, then the law of nuisance has been hugely expanded. But that is a possible conclusion to be drawn from this case. Presumably the court would answer that the question is not whether the city - owner of the servient estate - can cut the trees, but rather whether the pipeline owner can. And here, the court concludes - the 1963 easement agreement imposed a duty on the pipeline company to protect the neighbors. But, as indicated, it is a huge stretch - the editor believes an irresponsible one - to conclude that any rights ran to the neighbors when in that same agreement the parties reduced the size of the servient estate to a sixty foot strip and said not one word about the property outside of that strip. Comment 2: Another possible conclusion here is that somehow the public right of way, and the trees planted thereon, passed to the township as a public trust, similar to the creation of a park, and the neighbors - beneficiaries of the public use on the public property - had the right to require continuation of beneficial activities that occurred on the public property. There is a little precedent for this in the (previously unprecedented) decision of Citizens for the Preservation of Buehler Park v. City of Rolla, 2007 WESTLAW 2246602 (Mo. 8/7/07), the DIRT DD for 9//28/07). But to find a public trust in the trees on facts such as those in the instant case goes far beyond the scope of Buehler Park. There, the city had received the property in a dedication for public park purposes only. Here, the city received property subject to the pipeline easement and got it for the construction and maintenance of a roadway - not an arboreal paradise for those living adjacent to the road. Note: Ultimately, the court remanded for further analysis as to whether the pipeline company in fact had shown a justification for cutting down the trees. But the standing issue is so important that the editor has reserved the discussion of the rights of the dominant tenant for a subsequent DD. Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA. Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues. ABOUT DIRT: DIRT is an internet discussion group for serious real estate professionals. 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