Cameron v. Mark W. Liberty Midstream & Resources, L.L.C.

2024 Ohio 5279, 257 N.E.3d 440

• Court: Ohio Court of Appeals
• Decided: November 1, 2024
• Docket: 23 JE 0020
• Status: Published

Opinion

[Cite as Cameron v. Mark W. Liberty Midstream & Resources, L.L.C., 2024-Ohio-5279.]

IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT JEFFERSON COUNTY

DAVID E. CAMERON,

Plaintiff-Appellant,

v.

MARK WEST LIBERTY MIDSTREAM & RESOURCES, LLC ET AL.,

Defendants-Appellees.

OPINION AND JUDGMENT ENTRY Case No. 23 JE 0020

Civil Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 18 CV 258

BEFORE: Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT: Reversed and Remanded.

Atty. Michael D. Dortch, Atty. Richard R. Parsons, Atty. Justin M. Dortch, Kravitz, Brown & Dortch, LLC and Atty. Jeffrey Orr Brown, for Plaintiff-Appellant

Atty. Christopher R. Nestor and Atty. David R. Overstreet, Overstreet & Nestor, LLC, for Defendants-Appellees

Dated: November 1, 2024 –2–

WAITE, J.

{¶1} Appellant David Cameron appeals a September 27, 2023 judgment entry of

the Jefferson County Court of Common Pleas. Appellant argues the court erroneously

held that an agreement entered with Appellees Mark West Liberty Midstream &

Resources and Jefferson Gas Gathering Co., LLC contained a document that created the

final path of a right-of-way granted for purposes of installing a pipeline. In addition,

Appellant argues that Appellees breached their agreement to provide electric fencing to

protect his cattle. For the reasons that follow, Appellant’s arguments have merit and the

matter is reversed and remanded for further proceedings consistent with this Opinion.

Factual and Procedural History

{¶2} This matter involves a complicated right-of-way easement created for the

purposes of installing a pipeline through several properties in Mount Pleasant, Jefferson

County. Appellant owns a cattle farm which is comprised of approximately 129.49 acres

of land. Appellee Mark West is a midstream gathering company that removes gas from

various wells and transports it to sales lines.

{¶3} In essence, Mark West needed to secure several right-of-way agreements

in the Mount Pleasant area of Jefferson County to install at least several hundred feet of

pipeline in order to gather gas from certain wells and allow it to travel for sales purposes.

The general procedure employed by Mark West was laid out during the testimony of

Gregory Gbur, a Mark West employee familiar with both the company policies and the

events surrounding the instant case.

Case No. 23 JE 0020 –3–

{¶4} When Mark West seeks to install pipes, they first review GoogleEarth maps

to plan a route for the proposed pipeline. (Trial Tr., p. 43.) They then hire a land company

to complete a “short title” search to determine who owns property in the proposed path.

They approach these landowners, seeking a right-of-way easement which would allow

them to install the pipeline underground. If the landowner declines, the company must

undertake significant rerouting efforts to go around that property. Thus, Mark West must

have a large number of landowners cooperate in order to install its pipeline.

{¶5} If a landowner agrees to provide a right-of-way easement, the landowner is

compensated monetarily by means of a price per foot of pipeline. The landowner often

demands certain stipulations as to where the pipeline is placed, how it is constructed, and

other considerations. Gbur testified that he typically accompanies the landowner and

walks the planned route to show the proposed path and determine if there are any

concerns. Gbur acknowledged that, as a result of this process, the pipeline path often

changes. This is typically due to concerns of the landowner, concerns of Mark West or

the construction company, or environmental factors. Until the land is fully traversed and

the company has an idea of the underground configuration of the land (which will also

impact final placement), it is impossible to know the final pipeline route until this process

is fully completed. For this reason, while the landowner signs an initial document, referred

to as “Exhibit A,” which reflects a proposed placement, the path depicted on that

agreement is not the final pathway. Exhibit A is attached to the right-of-way agreement.

Although it has been referred to as “Exhibit A” throughout the proceedings, at trial it was

listed as Exhibit B. Thus, the citations to this document are inconsistent throughout the

proceedings.

Case No. 23 JE 0020 –4–

{¶6} Each time the proposed path changes, a new Exhibit A is generated, is

typically signed by the landowner for tentative approval of the changes, and a survey is

completed. Then, the right-of-way is roughly marked on the property by “survey stakes”

and the parties transverse this proposed pathway as staked. Around this time,

documents referred to as “alignment sheets” are generated. These sheets are the first

visualization of the path reduced to paper. As with the Exhibit A document, these sheets

are typically presented to the landowner for approval and signature. Thereafter, barring

any other concerns or problems, construction begins.

{¶7} Construction is initiated by digging a trench three feet or more deep where

the pipeline is supposed to be placed. Then the “mechanical completion” phase begins.

During this stage, the pipeline is tested and is “ready to throw product,” but remains

uncovered. (Trial Tr., p. 64.) The process next moves to the “restoration” phase, in which

the right-of-way area is restored as close as possible to its prior above-ground condition.

Typically this process involves at least seventy percent regrowth of vegetation.

{¶8} Often, multiple pipelines are placed within the same right-of-way location to

allow Mark West to install as much pipeline as possible and avoid having to enter into

more agreements with other landowners. These pipelines are required by law to be at

least fifty feet apart from one another. The first pipeline laid is typically placed right next

to the boundary lines to allow for as many pipelines as possible.

{¶9} In the instant case, Mark West approached Appellant and inquired if he

would be willing to agree to a 100-foot wide right-of-way and an access road along his

129.49 acre cattle farm. Initially, Appellant was reluctant, due to concerns regarding his

cattle operations and because he did not want his property disturbed. He took three

Case No. 23 JE 0020 –5–

months to come to a decision. It appears he initially declined to provide an easement,

but the parties were able to eventually reach an agreement that an easement would be

allowed. Mark West agreed to pay Appellant $60 per foot of pipeline.

{¶10} Mark West employees testified that several stipulations were reached in this

matter. Among the stipulations, Mark West agreed to install electronic fencing to keep

Appellant’s cattle from crossing into the construction area as they grazed, an important

concern on the part of Appellant. Although both parties admit an agreement was reached

on this issue, it was not reduced to writing. Mark West did, partially, install a fence.

Problematically, Mark West did not complete this fence and the electronic feature did not

work. Mark West attempted several repairs on the electronic feature but they were

unsuccessful. Because the fence was not completed and did not work, Appellant was

forced to keep his cattle in barns throughout the entire construction process, where he

had to extend extra efforts to clean the barns and was forced to bring in hay to feed his

cattle at his own additional expense. (Trial Tr., p. 121.)

{¶11} Gbur testified that he and Appellant conducted a first walk-through of the

property to determine whether either party had any concerns regarding the topography in

the proposed path. According to Appellant, he voiced several concerns during this

process. Mark West employees testified that several versions of “Exhibit A” were drafted

and signed throughout the process for various reasons. At some point, Appellant was

presented with a revised version of Exhibit A that he refused to sign. It is unclear why

this version was created, but it appears it was the result of some sort of construction or

environmental reason, as Mark West employees testified that, along with landowner

requests, these are the typical reasons to alter the proposed route of the easement.

Case No. 23 JE 0020 –6–

Altering its usual practice, instead of working out a mutually acceptable resolution, Mark

West decided to proceed to construction based on the prior version of Exhibit A, despite

the fact that there was some problem with this route, because otherwise a new version

would not have been proposed and created. Appellant objected orally, several times, to

this path Mark West imposed after construction began.

{¶12} Although documents referred to as “contact diaries” detail many of

Appellant’s oral objections, Gbur testified that he was unsure as to when Appellant first

raised his objections. A former Mark West employee, Brandon Kinner, testified that when

he first became aware that Appellant objected, he accompanied Appellant to the site. The

pipe had been laid but was still uncovered. Kinner also confirmed that the fence never

worked and he understood that caused problems, as it prohibited Appellant’s cattle from

grazing.

{¶13} On June 21, 2017, Appellant sent a letter to Mark West stating that the

pipeline path as it was being constructed was outside of the agreed right-of-way. A Mark

West employee testified that this type of complaint rarely occurs. He could remember

only one other occasion where this occurred, and the pipelines were moved to

accommodate the landowner in that instance. However, in this case, Mark West insisted

the path was in the right-of-way. Mark West approached Appellant with an “alignment

sheet,” which he refused to sign. Again, these sheets were typically agreed-to and signed

prior to construction.

{¶14} Mark West ended up installing a total of 85.41 feet of pipeline on Appellant’s

property. At least two pipelines were installed within what Appellees deemed to be the

path of the easement. According to Mark West, Pipeline One was installed right next to

Case No. 23 JE 0020 –7–

what they considered to be the boundary line. Pipeline Two was installed fifty feet from

that location. According to Gbur, mechanical completion occurred as to Pipeline One at

the end of January of 2017. Restoration occurred in July of 2017. It is unclear when

mechanical completion of Pipeline Two occurred, but restoration of that line occurred in

November of 2017.

{¶15} On June 14, 2018, Appellant filed a complaint against Mark West and

Jefferson Gas Gathering, alleging claims rooted in trespass. On November 6, 2019,

Appellant filed an amended complaint. On February 13, 2019, Appellant filed a second

amended complaint. The first count of the second amended complaint sought damages

for a trespass, and to have the pipeline relocated to an area within an agreed upon right-

of-way. The second claim asserted “[t]he actions of the Defendants were willful, wanton,

reckless and malicious and constitute a continuing trespass.” (Complaint, p. 5.) The final

count addressed the issues concerning the fence, and sought damages for the costs

incurred caring for cattle without the protection of a properly constructed electric fence.

{¶16} On February 5, 2020, Appellees filed a motion to bifurcate the trial pursuant

to R.C. 2315.21(B). On that same date, Appellees also filed a “Motion to Bifurcate Claims

for Declaratory Relief for Initial Bench Trial.” In these motions Appellees sought to have

the trial court first hold a bench trial to decide whether the version of Exhibit A they relied

on was ambiguous. Once that decision was reached, Appellees sought a jury trial on the

issue of whether a trespass occurred and, if so, whether damages would be appropriate.

Appellant did not object to either motion. The trial court granted both motions in a single

judgment entry, which also disposed of other general issues.

Case No. 23 JE 0020 –8–

{¶17} While the court agreed to hold two “trials,” at some point it unilaterally

converted the bench trial into “oral argument.” While it is unclear what direction the court

gave the parties regarding this “oral argument,” the trial court did provide the parties with

an opportunity to file briefs. It does not appear they were permitted to introduce witness

testimony. Hence, without actually stating this, the trial court apparently intended to

decide the matter regarding the path of the easement by means of summary judgment.

{¶18} A hearing on the matter was initially delayed due to the COVID pandemic.

However, the court was able to hold oral argument on the right-of-way issue on August

10, 2020. At oral argument, the right-of-way documents, at least seven versions of Exhibit

A, and a deposition from Gbur were admitted into evidence, however no witness

testimony was produced by any party.

{¶19} On August 12, 2020, the court determined that the last signed version of

“Exhibit A” was unambiguous and was generally intended to create the final description

of the right-of-way that bound the parties. The court determined that as the agreement

specifically indicated the map provided was “not to scale” Appellees were permitted some

leeway to decide the final location. Although the court relied on Exhibit A entirely, it is

apparent from the filings to the court and later testimony that Exhibit A was never intended

to reflect final placement, allowing construction to proceed. The court determined that

Appellees’ version of Exhibit A provided the “measuring stick” for the trespass claims.

{¶20} Following this decision, which it appears the court and parties treated as

final, the parties agreed that amending the complaint was not possible at that juncture.

Thus, Appellant waived his jury request on the remaining issues and they were addressed

before the trial court in a one-day bench trial. At trial, in addition to witness testimony,

Case No. 23 JE 0020 –9–

results from a professional surveyor were introduced. Those results appear to show an

encroachment of approximately 1.36 acres onto one section of Appellant’s property near

the Appellant/Griffith property line that is not a part of the right-of-way depicted by

Appellees’ version of Exhibit A as adopted by the trial court. The survey also appeared

to show an encroachment of roughly .96 acres in what was referred to as the “Zelek

Corner,” where Appellant’s property met the neighboring Zelek property. Thus, the survey

reflected a total of approximately 2.32 acres of potential trespass.

{¶21} In a somewhat confusing judgment entry, the court ruled in favor of

Appellees on both the trespass claim at the Zelek corner and the issue regarding

construction of the fence and the damages sought. As to the trespass issue, the court

appeared to find that a trespass occurred, but determined that the trespass was only a

few feet removed from the right-of-way, and so was not actionable based on its earlier

decision that Exhibit A allowed for variance. It appears the court determined that the

parties had loosely come to an agreement as to the location of the right-of-way, and found

that a small violation of that agreement was not inconsistent with the parties’ imprecise

measurements. As to the fence, while the court found that Appellant proved all elements

for an oral contract at trial, it ultimately determined that the agreement to construct a fence

was gratuitous, and was not actionable.

ASSIGNMENT OF ERROR NO. 1

The trial court erred prior to trial when it concluded as a matter of law that

the parties’ contract unambiguously depicts the route of the pipeline right-

of-way across Appellant’s property.

Case No. 23 JE 0020 – 10 –

{¶22} Appellant first takes aim at the trial court’s ruling that the last signed version

of Exhibit A unambiguously reflects the parties’ agreement on final placement of the

easement. Importantly, in this assignment of error, Appellant challenges only the trial

court’s first ruling, which occurred prior to trial. The court decided this version of Exhibit

A constituted a “measuring stick;” it vaguely determined where the parties intended to

have pipeline installed but allowed for deviation. This decision significantly limited the

issues Appellant was able to raise at the later bench trial. After the court’s initial ruling,

Appellant believed he could only argue whether the pipeline was installed within the

general path depicted on Appellees’ version of Exhibit A or whether it encroached on

areas outside of that path.

{¶23} Appellant contends that the sole and limited purpose of every version of

Exhibit A was to provide a rough, preliminary idea as to where the easement for the

pipeline path might be located, with the understanding that a determination on placement

could change during the routine route development process. However, final agreement

on the exact location of the pipeline location would be reached later in the process, prior

to construction. At the time of signing the larger easement agreement, the parties were

both unsure of the nature of the terrain in the general vicinity where the pipeline was

projected to be installed. Hence, they agreed to follow and abide by the typical practice

of Mark West, which was to jointly traverse the area to observe the terrain, convey any

concerns about the topography to one another, and that final approval of location would

be reached prior to actual construction. Appellant contends that because of this practice,

the rudimentary drawing depicted on the various Exhibit A documents was never intended

to show specific final boundaries and pipeline path lines, because it was merely a

Case No. 23 JE 0020 – 11 –

proposed baseline, never intended by any party to reflect the final location. Hence, the

court’s decision that Appellees’ Exhibit A was final and binding, providing a “measuring

stick” for the agreed location of the pipeline, was erroneous.

{¶24} Appellees respond that these arguments were not made at trial. However,

Appellant was unable to raise these challenges at the actual trial in this matter due to the

court’s initial ruling. Appellees then raise a series of disjointed arguments in the

alternative. First, Appellees argue that as the trial court found, Exhibit A states that it is

“NOT TO SCALE.” It reflects the parties’ intent merely to loosely define the boundary

lines of the right-of-way, but that great deviation on their part was both possible and

allowable. Second, Appellees contend that even if the pipeline is outside of the agreed

right-of-way, it does not interfere with Appellant’s ability to enjoy his land. Third, Appellees

contend they should prevail under the theory of equitable estoppel, as Appellant did not

object to the path early enough in the process. Fourth, Appellees raise, in a circular

argument, both that Appellant waived his right to damages, and that he cannot succeed

in his injunction request because he has an adequate remedy by way of damages.

{¶25} It is apparent from this record that this case has a unique and problematic

procedural history. Revisiting the procedural history is necessary for a complete review.

On August 12, 2020, the trial court determined that the last signed Exhibit A document

constitutes the final right-of-way path. The court determined that the last document gave

Appellees wide discretion to deviate from that “agreed” path. Thus, the subsequent trial

was intended to determine whether the pipeline was installed within the loosely defined

confines of the path depicted on Appellees’ Exhibit A. In order to review the propriety of

the trial court’s ultimate decision, we must look at the process used to reach that decision,

Case No. 23 JE 0020 – 12 –

beginning with a procedural question: whether the trial court’s decision to convert the first

bench trial into “oral argument” without the benefit of a full evidentiary hearing was the

appropriate mechanism to determine whether Appellees’ proposed Exhibit A was

unambiguous and, if so, whether that decision should have been revisited after becoming

fully aware of the evidence of Mark West’s practices regarding route development at the

later hearing. Necessarily, we look first to the substantive question of whether the version

of Exhibit A on which the court relied demonstrated the parties’ final agreed location of

the easement. If the answer to this question is in the affirmative, we may then turn to the

question of whether any trespass occurred using that easement’s path. However, if the

answer is no, then the matter must be remanded to determine whether any agreement

was reached as to the appropriate path, and on which path the parties finally agreed, if

any.

{¶26} Appellees moved to bifurcate the issues of whether Appellees’ proposed

Exhibit A unambiguously depicted the final easement path and whether the pipe

constituted a trespass into two “trials.” Specifically, on February 5, 2020, Appellees filed

a “Motion to Bifurcate Pursuant to R.C. 2315.21(B).” R.C. 2315.(B)(1) provides that:

In a tort action that is tried to a jury and in which a plaintiff makes a

claim for compensatory damages and a claim for punitive or exemplary

damages, upon the motion of any party, the trial of the tort action shall be

bifurcated as follows:

(a) The initial stage of the trial shall relate only to the presentation of

evidence, and a determination by the jury, with respect to whether the

Case No. 23 JE 0020 – 13 –

plaintiff is entitled to recover compensatory damages for the injury or loss

to person or property from the defendant. During this stage, no party to the

tort action shall present, and the court shall not permit a party to present,

evidence that relates solely to the issue of whether the plaintiff is entitled to

recover punitive or exemplary damages for the injury or loss to person or

property from the defendant.

(b) If the jury determines in the initial stage of the trial that the plaintiff

is entitled to recover compensatory damages for the injury or loss to person

or property from the defendant, evidence may be presented in the second

stage of the trial, and a determination by that jury shall be made, with

respect to whether the plaintiff additionally is entitled to recover punitive or

exemplary damages for the injury or loss to person or property from the

defendant.

{¶27} On that same date, Appellees also filed a “Motion to Bifurcate Claims for

Declaratory Relief for Initial Bench Trial.” In this motion Appellees specifically requested

the court to hold an “initial bench trial on Count I of [Appellant’s] second amended

complaint, which seeks declaratory relief.” (2/5/20 Motion to Bifurcate.) The motion

sought to then have a second trial on the remaining trespass and damage claims. It is

readily apparent that two trials, where the parties had the ability to present evidence and

testimony, was requested. This request was subsequently granted by the trial court in its

February 14, 2020 entry. The parties expected a full trial on both occasions, as

Case No. 23 JE 0020 – 14 –

specifically requested within the motions and granted in the judgment entry, which

specifically ordered “an initial bench trial,” not just “oral argument.” (2/14/20 J.E.)

{¶28} Instead of holding a trial on the initial issue, however, this record shows that

the trial court unilaterally converted the first trial into “oral argument.” We note that no

party filed a motion for summary judgment in this case, hence, they apparently

understood that there were material questions of fact that the trial court must address. It

is unclear whether the parties were informed of the exact nature of the trial court’s

decision to convert trial to oral argument prior to the hearing, as they were given the

opportunity to file briefs, but were apparently not allowed to offer witness testimony.

{¶29} Again, no party sought, and the court did not directly order, that the matter

be decided in summary judgment. The court merely ordered oral argument in lieu of a

full bench trial on the issue of contract ambiguity. Regardless, the problem with the

hearing and the court’s decision following this hearing is obvious once we review the

evidence that was submitted at the later hearing held on the remainder of the issues.

Without procuring testimony from the parties and witnesses and obtaining other possible

evidence, it was impossible to determine whether the parties did reach a final agreement

on the location of the easement and if they did, what the exact terms of that agreement

were. This testimony was presented only during what was supposed be the second trial.

Despite the trial court’s decision that the parties’ contract was unambiguous and

Appellees’ version of Exhibit A evinced the parties’ agreement to final location of the

pipelines, it is readily apparent from the testimony adduced at the later hearing from both

parties that this was not the case. Both provided evidence that final agreement was not

intended to be reached until all parties agreed to the final location, usually just prior to

Case No. 23 JE 0020 – 15 –

construction. All versions of Exhibit A were intended simply to assist them in reaching

this agreement. Hence, it should have been apparent to the trial court at least during this

trial that the initial decision to the contrary was erroneous.

{¶30} Because of the summary nature of the procedural vehicle employed by the

court, its original judgment amounted to an interlocutory order, subject to revisiting during

the subsequent trial. However, it is clear from this record that the trial court proceeded

as though the parties were to be bound by its initial ruling and it would not be revisited.

Because the court ruled in a summary fashion in its initial judgment, this interlocutory

summary judgment decision should have been revisited, and a full hearing on the issue

of the parties’ agreement on the final path of the easement should have been held. It is

abundantly apparent that there were a great many issues of material fact on which the

parties did not agree regarding the ambiguity raised by the document known as Exhibit A

in their contract, and the court’s process of summarily deciding without a resolution of

these facts was error.

{¶31} Appellant attached a partial transcript of the Gbur deposition to his brief in

support of the oral argument ordered by the court. This transcript included Gbur’s

testimony regarding Mark West’s practice in securing a right-of-way easement and the

process of selecting the final route. He stated that during the pipeline route development:

[T]hey’re working with the landowner as far as edits, you, know,

concerns that the landowner might have. Then, really, it’s a lot of back and

forth between the landowner, again the different groups within Mark West.

. . . Obviously, we have to match up at a property line. So it’s a lot of back

and forth trying to establish a route. . . .

Case No. 23 JE 0020 – 16 –

...

If during that process there are some issues that come up, usually

it’s unknown stuff -- that being said, what I mean is maybe there is some

environmental impacts, some stream crossing, some wetlands, some

historical archeological type hits that we don’t know about that we’ll try to

go back to the landowner to adjust, go around some of those features.

Sometimes construction will come up to us and say “you know,

ideally, this isn’t a great situation. If we can adjust a route slightly here, can

we do this?” If that’s the case, again, we’ll go back to the landowner and

try to make an adjustment for that.

(Depo., pp. 11-12.)

{¶32} During his deposition, Gbur clarified how the landowner, construction

company, environmental, and other groups are to visualize this one-hundred foot wide

path in context with almost 130 acres of land. He stated:

During the landowner/land agent negotiations, I mean, we’ll show

[the landowner] the exhibit. We’ll even flag up the route in the field.

Sometimes our routers will meet with the land agent and the landowner to

walk the route, make changes as needed. But again, once those agents

change the route, it goes back through the vetting process again with

environmental.

Case No. 23 JE 0020 – 17 –

(Depo., p. 18.) Gbur was asked if this meant the rerouting plans had to be approved by

all parties. He clarified that everyone must sign off on the new route. He also testified

that the “flag route” is a process of marking the area of the path on the ground with flags

and that this “is really more for the landowner to look at and also the other departments

of Mark West. If they can go out and take a look at the route, they can see what the

corridor, you know, the center line looks like.” (Emphasis added.) (Depo., p. 19.)

{¶33} As to a situation where a landowner develops concerns during this process,

Gbur testified that:

So we’ll assign a reclamation agent to meet with that landowner to

get those concerns. He’ll report back. Depending on what those concerns

may be, it may involve going back again the different entities, the

environmental, the construction, the operational group to get their, either,

blessing that we can fix these things. Normally, there is a site visit involved

to go out and look at the issues, and we’ll do our best to try to resolve these

issues.”

(Depo., p. 32.)

{¶34} Again, the court ruled on the issue of the easement agreement in a

summary fashion, absent a full, evidentiary hearing and without clear notice to the parties

that it was conducting a summary judgment analysis. Regardless, the court’s initial order,

which also lacked final appealable order language, was an interlocutory order subject to

revisiting at any time prior to becoming final, certainly during or after the remainder of the

issues pending before the court were heard in the bench trial. Despite this, it is apparent

Case No. 23 JE 0020 – 18 –

from the dialogue between the parties and the court at the commencement of that trial

that the court did not intend to revisit the initial issue; that it was final and the parties were

“bound by” Appellees’ version of Exhibit A. The initial issue the court was tasked with

deciding is whether the parties’ agreement, specifically the last signed version of Exhibit

A, is unambiguous, and whether it is proof that the parties had a meeting of the minds on

the final location of the easement.

{¶35} It also appears that the question of whether the parties intended this version

of Exhibit A (or any other version) to represent the final path of the pipeline and thus, the

easement, was not definitively answered by the trial court. The court decided that the

parties agreed to use only a very rough approximation of where the pipeline would be laid

as the final easement path, and that the language on the document would allow for

deviation at Appellees’ sole discretion.

{¶36} On review, every version of Exhibit A shows it is a very primitive and basic

Word document “drawing” of the pipeline path that includes no identifying marking

information. The “drawing” actually consists of a square, intended to represent an outline

of the entire property, with a line drawn to represent the potential pipeline path.

Underneath the small graphic are two lines of type stating: “Parcel lines are shown for

reference only and exhibit does not constitute a boundary survey, as defined in Chapter

4733-37 of the Ohio Administrative Code. NOT TO SCALE.” (Exhibit B.) This is not

surprising, as Mark West would not be expected to expend energy to provide a detailed

metes and bounds description to scale, because both parties testified they anticipated

that many changes to this path would take place before final agreement was reached. At

least seven versions of Exhibit A documents were introduced into evidence in this case.

Case No. 23 JE 0020 – 19 –

These show that many changes were made to the path, as each version differs from the

other. Precise measurements on any initial versions of Exhibit A would be an

unnecessary burden for such tentative placement.

{¶37} The trial court heavily, and perhaps exclusively, relied on the language

within Appellees’ version of Exhibit A that the drawing did not constitute a boundary

survey and was “not to scale” in reaching its decision. However, this language adds

nothing to a determination based on the actual facts of this case. A metes and bounds

description has no bearing on the ultimate issue, here, which is whether the parties

ultimately agreed in any version of Exhibit A to a definitive easement path. While it is

clear that the parties agreed to the general, preliminary parameters of an easement, they

left open the question of specific location. Gbur testified that when it appeared the parties

may have actually reached agreement, the path was marked with flags and the parties

walked this path to see if they still agreed. If no other changes seemed necessary,

“alignment sheets” were generated and signed, and the construction was started, as it

seemed that all parties had finally agreed. Hence, the Exhibit A document relied on by

Appellees and the court may represent only an “agreement to agree.”

{¶38} Importantly, Exhibit A is only one document of many comprising the parties’

original agreement. The actual agreement which created the right-of-way is a recorded

document that was signed by parties in October of 2015. The document contains several

relevant clauses. First, the document sets out the purpose of the agreement and does

provide Appellees with some latitude in determining the pipeline path:

A right-of-way and easement along a route, the location of which

shall be determined by GRANTEE (the location of the pipeline, as

Case No. 23 JE 0020 – 20 –

constructed, to evidence such route) to locate, excavate, construct, install,

operate, maintain, inspect, repair, modify, replace in whole or in part,

remove and abandon one or more pipelines for the gathering and

transportation of gas.”

(10/16/15 Right-of-Way Agreement.)

{¶39} While this clause does seem to give Appellees discretion in selecting the

route for the pipeline, it also requires that “GRANTOR approves of the location of the

proposed easement route across said lands as mutually agreed to by GRANTOR and

GRANTEE.” (Emphasis added.) (10/16/15 Right-of-Way Agreement.) Thus, while

Appellees may initially select the path, the landowner must agree before the easement

route is final. Again, the record reveals that at least seven different versions of Exhibit A

exist in this case.

{¶40} Next, the document addresses restrictions as to the area where the right-

of-way will ultimately be created. Notably, two different widths are described: the first is

the actual area of the right-of-way. The second allows additional width solely for the

purpose of repairing, replacing, or removing existing pipelines after the construction is

completed.

The right-of-way and easement herein shall consist of a single strip

of land one hundred feet (100’) in width during preconstruction, construction

and during the time GRANTEE is engaged in any repair, replacement or

removal of existing pipelines and appurtenances, and during those times

GRANTEE shall also have the right to use an additional width of Property

Case No. 23 JE 0020 – 21 –

as reasonably needed along areas of road, railroad, or stream crossing and

uneven terrain. At all other times such right-of-way and easement shall be

one hundred feet (100’) in width.

{¶41} An addendum to the right-of-way agreement provided that “[i]t is also

agreed that any relocation of said easement shall be by mutual consent and shall not be

unreasonably withheld or delayed.” (Emphasis added.) (10/16/15 Addendum.)

{¶42} Several months after signing the initial documents, Appellant signed a

document granting Appellees access to Appellant’s land “for the purpose of performing

surveys that include but are not limited to the characterization of land as to property

ownership . . .” (Survey Permission, Exh. 12.)

{¶43} Contrary to the court’s decision, these documents, when read together, do

not provide Appellees with sole discretion in determining the location of the easement.

Instead, it is clear that Appellant’s agreement as to where the pipeline was laid on his

property was also required, although agreement may not be “unreasonably withheld.”

Allowing Appellees complete discretion would have put nearly all of Appellant’s 130 acre

cattle farm in play, and Appellant would be left with no control over a large portion of his

property. This was not the obvious intent, here. It is clear from the parties’ language that

they were to work together and mutually agree on a final easement path, that they were

attempting to refine in various submissions of Exhibit A.

{¶44} Appellant contends the parties never agreed to a final route. Based on the

current record, it is questionable whether they came to a meeting of the minds as to an

essential term of the agreement: the final location of the easement. Even if the parties

Case No. 23 JE 0020 – 22 –

did reach a valid agreement, it is apparent that, at most, they may have agreed to agree

as to final easement location and final location of the easement was left as an open

question at the time Appellees began construction of the pipeline.

{¶45} In a case arising out of the Eleventh District, two parties entered into a

permanent easement to allow for a driveway leading from a state route to a main pump

house. H & S Co., Ltd. v. Aurora, 2004-Ohio-3507, ¶ 17 (11th Dist.). While the dispute

involved a subsequent bona fide purchaser who contested the location of the driveway

some fifty years after the agreement, the issue on appeal is similar to the problem at hand:

whether an easement that fails to include a metes and bounds description sufficiently

describes the easement location.

{¶46} The H & S Co. court discussed the applicable law as follows:

The failure to describe an easement by metes and bounds does not

render the conveying instrument invalid. See Roebuck v. Columbia Gas

Transm. Corp. (1977), 57 Ohio App.2d 217, 219-220, 386 N.E.2d 1363.

The extent and scope of an easement “are to be ascertained from the

language of the grant and the circumstances surrounding the transaction.”

Amsbary, 1991 Ohio App. LEXIS 1186, at *8 (citation omitted). The use of

extrinsic evidence is proper to determine the extent and scope of an

imprecise easement. Roebuck, 57 Ohio App.2d at 220, 386 N.E.2d 1363

(citation omitted); Amsbary, 1991 Ohio App. LEXIS 1186, at *9 (citation

omitted). Thus, when an expressed easement imprecisely describes the

location of an easement, the court must examine extrinsic evidence to

Case No. 23 JE 0020 – 23 –

determine the location as intended by the parties, which is typically

indicated by use. See Amsbary, 1991 Ohio App. LEXIS 1186, at *12

H & S Co., at ¶ 16.

{¶47} Although the H & S Co. court expressed that “more particular terminology

could have been utilized to describe the easement,” the court relied heavily on the fact

that the document creating the easement described a pre-existing road as the location

for the easement. Id. at ¶ 17. Thus, the document did describe a particular, fixed location,

even though it did not contain a metes and bounds description.

{¶48} In a case arising out of the Third District, a landowner agreed to provide a

right-of-way for purposes of installing a sewer line. Ayersville Water & Sewer Dist. v.

Geiger, 2012-Ohio-2689, ¶ 7 (3rd Dist.). The agreement included a document referred to

as “Exhibit A,” which described the easement in more detail. That document provided the

easement would be twenty feet wide and “centered on the sewer line,” but did not include

a metes and bounds description, nor did it provide the pipe’s exact placement. Id. at ¶ 34.

The court found that these facts did not render the agreement entirely ambiguous, but

noted that it left open for determination the question of the right-of-way location.

{¶49} The court explained that, ordinarily, where there is an undefined easement

placement, the owner of the subservient estate is given the initial right to determine the

location. Id. at ¶ 35. However, evidence in the case regarding the parties’ intent tended

to show that although the parties testified they each had a different understanding of

where the path would be, the main sewer line ran through the road leading from where

the district placed the line, not the road where the landowner wanted the line. To place

the line where the landowner believed it would go required approval of an extension to a

Case No. 23 JE 0020 – 24 –

different sewer system, which would entirely frustrate the purpose of the easement. In

addition, building plans were admitted into the record showing the easement along the

street where the line was eventually installed. Thus, the court found that easement was

properly located.

{¶50} While not directly on point, as both cases involved an attempt to challenge

the location of an easement long after construction was complete, they do stand for the

proposition that where an agreement fails to establish metes and bounds description of

an easement and the question of exact location remains, a court must look to all relevant

factors in reaching a final decision.

{¶51} Here, it is clear that the parties reached the following terms: Mark West

was entitled to a right-of-way with a width of 100 feet, Mark West agreed to pay Appellant

$60 per foot of pipeline laid on the property, and a general parameter of the pipeline path

was given, but that exact location would be subject to change for several reasons,

including the requirement of landowner agreement.

{¶52} As to Exhibit A, from the documents admitted into evidence and the

testimony, particularly from Mark West employees, it is abundantly clear that Exhibit A

was never intended, even at the time various versions were signed, to represent final

agreement on the ultimate path of the pipeline, and hence, the easement. The intent of

both parties was to reach a mutual decision, following an opportunity to walk through the

area together and view the topography to determine if either had any concerns moving

forward with that proposed location.

{¶53} All of the evidence in the record before us strongly suggests Appellees’

Exhibit A was not unambiguously the final easement location. The right-of-way

Case No. 23 JE 0020 – 25 –

agreement provides: “GRANTOR approves of the location of the proposed easement

route across said lands as mutually agreed to by GRANTOR and GRANTEE.” (10/16/15

Right-of-Way Agreement.) We note the use of the phrase “proposed easement.” This

strongly suggests that the documents called Exhibit A were preliminary in nature. Next,

we focus on the phrase “as mutually agreed to.” When read together with the clause

giving Appellees discretion in deciding location, the phrases show that while Appellees

could choose a preliminary location, that path must be mutually agreed upon before

becoming final. An addendum to the right-of-way agreement supports this interpretation:

“[i]t is also agreed that any relocation of said easement “shall be by mutual consent and

shall not be unreasonably withheld or delayed.”

{¶54} This process clearly provides landowner participation in every aspect of

determining the pipeline path. Gbur specifically testified that the flagging is done for the

purpose of ensuring that the landowner can visualize the path. He also conceded that

every time a change is made to the path, everyone in the process must review the

changes and the flagging process is then reconfigured in accordance with additional

changes.

{¶55} Gbur characterized this process as one of “give and take,” with constant

changes made to accommodate both parties as well as the construction company and

environmental representative. Most issues (aside from landowner concerns) involve the

presence of streams, rough terrain, and unknown underground obstacles. To put this in

perspective, Appellant’s property is just shy of 130 acres. Neither party would be

expected to know every inch of the terrain, particularly by reviewing the rudimentary

Microsoft Word drawing of the property depicted in Exhibit A. Thus, as constant changes

Case No. 23 JE 0020 – 26 –

are made and the property is traversed, essentially to double check these changes, the

parties work together to develop an appropriate final route.

{¶56} Gbur also seems to take the position that once a landowner disagrees about

the location proposed by Mark West, Mark West is no longer required to cooperate and

is entitled to unilaterally act based on the last signed version of Exhibit A. Not only is this

contrary to the written terms of the agreement itself, it ignores the fact that this pipeline

installation benefits Mark West and burdens Appellant. It is Appellees who desire, and in

fact need, the proposed easement. It is Appellant whose land and cattle farm will be

burdened by the easement he did not seek. According to the usual process detailed by

Gbur, Mark West must work with Appellant to ensure he has no objections to the final

location of the easement. And again, the record includes at least seven versions of

Exhibit A. It appears unreasonable to hold Appellant to any of these at any point in the

process just because they were all signed. If Mark West believed Appellant was being

unreasonable in refusing to sign off on a later proposal, it appears there may be redress

under the contract. There is no provision for unilaterally beginning construction, however.

{¶57} While Gbur testified that where a landowner fails to sign a version of Exhibit

A following a change by Mark West, the most recent signed Exhibit A becomes the final

pathway, this is not apparent in the language of the contract and ignores the very process

that Mark West utilizes. In order to arrive at a mutually agreed location, there is a standard

process of allowing both parties to jointly arrive at a final location by amending the

proposed path, and to allow both parties to voice objections to the proposed path and

alter it based on those objections until the parties ultimately agree on final location.

Case No. 23 JE 0020 – 27 –

{¶58} Gbur specifically stated “[b]y signing that survey permission, it also allows

us to get our contractors in the field to, basically, walk that route to see if there’s any

issues constructability-wise, and to meet with the landowners as well to see if they have

any issues.” (Trial Tr., p. 44.) Then, “[w]e’ll get environmental out there to look for

environmental features, like streams and wetlands, cultural resource hits, and then that

process really kind of – it’s a lot of back-and-forth between all these groups and the

landowner, getting that route.” (Emphasis added.) (Trial Tr., p. 44.)

{¶59} The very fact that Mark West presented a new version of Exhibit A to

Appellant shows that the route was still in development when Appellant refused to agree

to the new proposal. To simply cease efforts and begin construction appears violative of

the cooperative nature of the agreement. This was not a contract where Appellant agreed

that Appellees had final say over laying their pipeline across a vast swath of his cattle

farm. The record reflects the parties were required to work together and develop a

mutually agreed upon path for the pipelines and easement.

{¶60} While it is certainly true that parties can agree to uncertain terms with the

understanding that flexibility is appropriate and may be exercised, the record in this case

suggests that Appellant intended to reserve final right to approve where the pipeline was

ultimately to be constructed and Mark West agreed, unless approval by Appellant was

“unreasonably” withheld.

{¶61} Turning to Appellees’ arguments, as to whether Appellant objected at the

proper time, the evidence shows he objected several times. The pipelines had not yet

been buried at the time certain employees of Mark West were made aware of Appellant’s

Case No. 23 JE 0020 – 28 –

objection to their placement. Gbur testified that the only other time this happened, the

pipeline was moved to accommodate the landowner.

{¶62} Appellees claim that Appellant has not demonstrated a limitation on his use

and enjoyment of the property. This is clearly contradicted by the record. Appellant was

specifically asked if the pipeline interfered with his use and enjoyment of his property and

he responded in the affirmative, and offered testimony as to specific problems. Further,

the pipe is buried only three feet underground. Thus, Appellant is limited in his ability to

dig or plant crops in these areas without potentially striking a pipeline carrying natural

gas. Finally, the pipeline may need to be serviced or replaced in the future, which may

require disruption of the area again.

{¶63} As to Appellees’ argument the trial court correctly determined that if they

have intruded into land outside of the easement, any intrusion is slight and no recovery

is warranted, as we must remand this matter for the trial court to determine whether an

agreement was ever reached and, if so, where they agreed the easement was located,

this matter is not ripe for our consideration. However, we note that any intrusion outside

an easement constitutes a trespass, no matter how slight that intrusion may be. Ohio law

provides that “even if the injury was slight, the trespass could still give rise to at least a

claim for nominal damages.” Smith v. A.B. Bonded Locksmith, Inc., 143 Ohio App.3d

321, 326 (1st Dist. 2001). Thus, the level of intrusion is of no relevance, and the question

is limited to whether there was an intrusion into a place that Appellees were not entitled

to occupy.

{¶64} Finally, Appellees make a circular argument that Appellants are not entitled

to damages or an injunction. Both of these statements cannot be true. Appellant cannot

Case No. 23 JE 0020 – 29 –

be barred from seeking an injunction on the basis that damages are available, while also

arguing that damages are unavailable. Again, however, as we are reversing the trial

court’s decision and remanding this matter, it is, likewise, not ripe for review.

{¶65} Based on the above, the trial court erred by determining that Appellees’

version of Exhibit A is not ambiguous and clearly provides the final location of the

easement, and this decision is reversed. At worst, the record reflects that the parties

merely entered into an “agreement to agree.” At best, the terms of the parties’ agreement

are ambiguous. The matter is remanded to determine whether the parties had a meeting

of the minds as to all essential terms of the contract and to hold a new trial to resolve the

issues raised in the complaint in this regard.

ASSIGNMENT OF ERROR NO. 2

The trial court then erred when it determined that a portion of the pipeline

built on Appellant’s property east of the “Zelek Corner” is within the

“approved” right of way, even though no such right of way is depicted on

that portion of Appellant’s lands in Exhibit A.

{¶66} Appellant focuses his argument on a specific area of his property which is

referred to as the “Zelek corner,” located near a corner which abuts the Zelek property.

{¶67} Due to our resolution of Appellant’s first assignment of error, Appellant’s

second assignment of error is moot.

Case No. 23 JE 0020 – 30 –

ASSIGNMENT OF ERROR NO. 3

The trial court erred when it concluded that Appellees’ promise to erect

working electrical fences across Appellant’s property was “merely

gratuitous.”

{¶68} Appellant correctly asserts the trial court found that he had proven all

elements of an oral contract at trial, but determined that the promise to install an electric

fence was merely gratuitous. Appellant contends that this fencing was necessary to his

cattle farm operation. It was to allow his cattle to graze without being injured by the

construction process. Because the fence was not completed, and did not work in the

areas where it was installed, Appellant was forced to confine his cattle to barns for several

months. His damages included the costs of purchasing hay and providing feed, which

would be unnecessary if they were able to graze as usual, the labor required to feed and

water the cattle in the barns, as well as the increased labor of cleaning the barns. Had

the fencing been completed and operable, none of these expenses would have been

incurred.

{¶69} “To prove the existence of a contract, a plaintiff must show that both parties

consented to the terms of the contract, that there was a ‘meeting of the minds’ of both

parties, and that the terms of the contract are definite and certain.” Ramun v. Ramun,

2014-Ohio-4440, ¶ 27 (7th Dist.), citing McSweeney v. Jackson, 117 Ohio App.3d 623,

631 (4th Dist. 1996).

{¶70} “Ohio courts have held that “[t]he burden of proof on one seeking to enforce

an oral contract requires that party to prove the existence of the contract by clear and

Case No. 23 JE 0020 – 31 –

convincing evidence. ‘Clear and convincing evidence’ is evidence that will produce in the

fact-finder's mind a firm belief or conviction as to the facts sought to be established.”

(Citations omitted.) Id., citing Bumgarner v. Bumgarner, 2010-Ohio-1894, ¶ 20 (4th

Dist.).

Gratuitous promises are not enforceable as contracts, because there

is no consideration. * * * A written gratuitous promise, even if it evidences

an intent by the promisor to be bound, is not a contract. * * * Likewise,

conditional gratuitous promises, which require the promisee to do

something before the promised act or omission will take place, are not

enforceable as contracts. * * * While it is true, therefore, that courts generally

do not inquire into the adequacy of consideration once it is found to exist, it

must be determined in a contract case whether any ‘consideration’ was

really bargained for. If it was not bargained for, it could not support a

contract.

Williams v. Ormsby, 2012-Ohio-690, ¶ 17, citing Carlisle v. T & R Excavating, Inc., 123

Ohio App.3d 277, 283-284 (9th Dist.1997).

{¶71} The consideration for the oral contract, here, is clearly provided on the

record. Appellant operates a cattle ranch. His desire to protect his cattle and his cattle

operation during the pipeline construction is apparent. Hence, any agreement to allow

an easement was conditioned on Appellees’ agreement to build an electric fence, which

would allow Appellant’s cattle to freely graze but keep them away from the area of

construction. The fact that Mark West did, in fact, attempt to build this fence demonstrates

Case No. 23 JE 0020 – 32 –

their acceptance. Appellant’s agreement to allow Appellees’ encroachment into an area

where cattle operations take place was consideration for the oral contract.

{¶72} It is significant, here, that Appellees undertook partial performance.

Appellees contend that while no agreement was ever reached, they gratuitously installed

a significant amount of fencing although they never completed the project. They

conceded at trial that they exerted considerable effort on several occasions to repair

problems with the fencing. Appellees acted in a fashion that supports Appellant’s

contention the parties had reached a meeting of the minds. As such, this record reveals

the parties entered into an oral agreement where Appellees agreed, in addition to paying

monetary compensation for laying pipeline, to provide electric fencing in exchange for

Appellant allowing an easement to build the pipeline through Appellant’s cattle operations.

{¶73} Additionally, as Appellant point out, the easement agreement provides:

GRANTEE agrees to indemnify, protect, save harmless and defend

GRANTOR from and against any loss, claim or expense, including without

limitation, claims for injury or death to persons or damage to property,

occurring as a result of the right of GRANTEE’S use of GRANTOR’s land

pursuant to this Right-of-Way Agreement, or as a result of loss, expense,

injury or death which would not have occurred but for the GRANTEE’S use

of GRANTOR’S land pursuant to this Right of Way Agreement.

(10/16/15 Right of Way Agreement.). This language additionally supports Appellant’s

request for damages.

Case No. 23 JE 0020 – 33 –

{¶74} Appellees also question the amount of damages sought. However, at trial,

Appellant introduced and supported the figure of $76,000, and Appellees did not contest

that amount in any way. Hence, Appellees cannot now attack the amount of damages,

as they have waived this issue.

{¶75} Appellant provided evidence that he incurred expenses amounting to

$76,000 as a result of being forced to keep his cattle in barns due to the pipeline

construction. Appellees failed to build an electric fence, as agreed. Appellees also

separately agreed to make Appellant whole if any expenses were incurred as a result of

the construction. As such, Appellant’s third assignment of error has merit and is

sustained.

Conclusion

{¶76} Appellant argues the court erred in holding that the parties specifically

agreed to the final path of a right-of-way granted for purposes of installing a pipeline when

they signed a version of a document called Exhibit A. However, it appears from this

record that Exhibit A was intended to reflect a preliminary, working document which

constantly changed, and was never meant to reflect a final depiction of the pipeline path.

The trial court’s decision to dispose of the issue in a summary fashion when there are

clearly outstanding and material factual disputes was error. The trial court’s decision is

reversed, and we remand for a full hearing on whether the parties reached final

agreement as to the path of an easement. The court must determine whether the parties

reached a final agreement as to location of the easement and, if so, where said easement

is located and whether trespass occurred. The trial court’s decision that the parties had

entered into a valid oral agreement to build a protective electric fence on Appellant’s cattle

Case No. 23 JE 0020 – 34 –

farm, but that this agreement was gratuitous, is also reversed. Consideration for the

agreement is apparent on the record, and damages were proven. The trial court is to

enter judgment for Appellant for this issue in the amount of $76,000. All other

assignments are moot. For the reasons provided, Appellant’s arguments have merit and

the matter is reversed and remanded for further proceedings.

Robb, P.J. concurs.

Hanni, J. concurs.

Case No. 23 JE 0020 [Cite as Cameron v. Mark W. Liberty Midstream & Resources, L.L.C., 2024-Ohio-5279.]

For the reasons stated in the Opinion rendered herein, Appellant’s first and third

assignments of error are sustained and the second assignment is moot. It is the final

judgment and order of this Court that the judgment of the Court of Common Pleas of

Jefferson County, Ohio, is reversed. This cause is remanded to the trial court for further

proceedings according to law and consistent with this Court’s Opinion. Costs to be taxed

against the Appellees.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.