Daily Development for Tuesday, October 23, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders, Kansas City, Missouri

EASEMENTS; SCOPE; PIPELINE MAINTENANCE: A pipeline company may be able to compel the removal of well established trees in order to permit aerial surveillance of the pipeline to identify leakage.

Township of Piscataway v. Duke Energy, 488 F.3d 203 (3rd Cir. 2007)

As discussed in yesterdays DD, we have here an attempt by a pipeline company to remove 55 shade trees from its high pressure gas pipeline easement adjacent to a residential neighborhood.  For purposes of this discussion, we can assume that the question is whether the servient tenant desires to keep the trees and wishes to prohibit the pipeline company from removing them. 

The terms of the pipeline easement, first granted in 1944, included the right to lay operate, renew, alter, inspect and maintain two pipelines.  The grant further stated that the dominant tenant was required to bury such pipelines so that they will not interfere with the cultivation or drainage of the land, and also to pay any and all damages to stock, crops, fences, timber and land which may be suffered from the construction, operation, renewal, alteration, inspection or maintenance of such pipelines.

An easement for a third pipeline was added in 1963, subject to the same restrictions.  At that time, the servient owner substantially reduced the dominant area to the sixty foot width needed to carry the pipelines as they had been laid.  The servient owner then transferred the property to the city to build a road over the pipes, and proceeded to develop a residential subdivision on the balance of its property.  Over time, someone (possibly the city) planted a substantial number of trees on the sixty foot strip, and these grew tall and healthy  - some as high as 75 feet. 
In 2000, the pipeline company, apparently for the first time, objected to the presence of the trees and sought their removal.  The township, owner of the road, objected.  As the DD for Monday, 10/22/07, indicates, ultimately the city settled with the pipeline company, and the neighbors continued the fight, which boiled down to 55 tree instead of the original 80 proposed for removal, but this is largely irrelevant to the issue under discussion here - whether the pipeline easement holder can justify the removal of large shade trees to facilitate aerial surveillance of the pipes.

The pipeline company also argued that the special type of coating that it had placed originally on the pipes grows brittle over time and thus is susceptible to damage from tree roots.  The editor suspects, frankly, that the court is unlikely to accept this argument as a basis for removal of the trees, at least now that the appellate court has acknowledged that the trees are worthy of some protection due to the language of the easement right.  The short answer to the pipeline company is that it should have used coatings that were resistant to tree roots or else protected itself better in the easement grant.  Nevertheless, the court did remand this issue to the trial court for a further hearing, because it concluded that the materials submitted by the company raised a triable issue of fact.

But there were two other discussions in the case worth noting.  First, the trial court had held that the pipeline companys failure to raise the question of the trees in the first 55 years of the existence of the pipeline, including during the period that the trees grew up to shade a substantial residential subdivision adjacent to the pipeline, barred the pipeline company from raising its claims now due to the equitable doctrine laches.  The appeals court held that new knowledge of pipeline hazards and concerns of public safety have created a new environment for pipeline inspection, and that the company again made out a triable issue that this new environment created a need for higher standards of which the aerial surveillance is an important part.  Thus, the company had not been negligent in failing to raise the question of the trees in the past.  It is only recently that the aerial surveillance issue, at least has come to the fore.  (Note that this might not be true of the tree
root concerns.)

As to the aerial surveillance, the pipeline company noted that its nationwide standards for high pressure gas pipelines now restrict the size and amount of foliage that can be planted above pipelines because of the need to inspect the right of way for evidence of leakage.  The most common sign of leakage the development of dead or discolored brush adjacent to the pipelines.  But the brush that the inspectors look for, the company argued, cannot be seen through a tree canopy.  Drive by inspections are less reliable and, of course, more expensive.  It noted that aerial surveillance of pipelines modernly happens once or twice a week. 

It remains to be seen whether the neighbors will be able to refute the evidence adduced by the company on this issue.  The only thing that the Third Circuit panel determined was that the reports and testimony produced by the company was sufficient to challenge the neighbors to refute it in some way.  It ain't just chopped liver!!!

Also see:  Still v. Eastman Chemical Co., No. 06-04-001224-CV (Tex. App. 2005) (Holder of pipeline easement can enjoin servient owner from permitting operation of four wheel drive recreational vehicles in easement area where evidence shows that such operation has led to erosion of the soil covering the pipes, thus creating a danger of explosion or fire from materials the pipes carry.)

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