Scherger v. Northern Natural Gas Co.

562 N.W.2d 328, 1997 WL 191833
CourtCourt of Appeals of Minnesota
DecidedJune 27, 1997
DocketCX-96-2319
StatusPublished
Cited by1 cases

This text of 562 N.W.2d 328 (Scherger v. Northern Natural Gas Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scherger v. Northern Natural Gas Co., 562 N.W.2d 328, 1997 WL 191833 (Mich. Ct. App. 1997).

Opinion

OPINION

DAVIES, Judge.

Appellant landowners challenge a summary judgment that respondent pipeline company may replace a gas pipeline on appellants’ property without acquiring a new easement. We reverse and remand.

FACTS

The following facts are undisputed. Appellants Norbert and Delores Scherger own a farm in Dodge County. Pursuant to an easement agreement entered into between the predecessors of both appellants and respondent Northern Natural Gas Company, a natural gas pipeline was built across the farm in 1932. In October 1995, respondent advised appellants that it would be replacing the existing pipeline. Appellants, asserting their rights under Minn.Stat. § 300.045, demanded from respondent a “definite and specific description” of the existing pipeline easement. Respondent replied that it would provide a description when work on the replacement pipeline was completed. The route of the replacement pipeline turned out to lie a distance of 50 to 297 feet from the original pipeline.

Appellants began an inverse condemnation action against respondent in February 1996. The district court denied appellants’ motion for summary judgment to compel condemnation and granted respondent’s motion for summary judgment. This appeal followed.

ISSUES

I. Does respondent have the right under the terms of the easement agreement to replace the original pipeline with a new pipeline at a different location?

II. Does a demand under Minn.Stat. § 300.045 for a “definite and specific description” serve to confine respondent’s easement to the “as built” route of the original pipeline?

ANALYSIS

On appeal from summary judgments, this court’s review is limited to two questions:

(1) whether there are any genuine issues of material fact and
(2) whether the lower courts erred in their application of the law.

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). An issue of fact is material if it would affect the outcome of the case. Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60 (1976). “A reviewing court is not bound by a district court’s determination of a purely legal issue.” Summit House Co. v. Gershman, 502 N.W.2d 422, 423-24 (Minn.App.1993).

I. The Easement

“The construction and effect of a contract are questions of law for the court.” Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 66 (Minn.1979).

The easement agreement entered into by appellants’ and respondent’s predecessors states that it grants

the RIGHT, PRIVILEGE and EASEMENT to construct, maintain and operate pipe lines, and appurtenances thereto, over and through the following described lands and appurtenances * * * together with the right of ingress to and egress from said premises, for the purpose of constructing, inspecting, repairing, maintaining and replacing the property of the grantee located thereon, or the removal thereof, in whole or in part, at the will of the grantee.

(Emphasis added.) In consideration of the grant, the grantee was to pay the grantor $.50 per lineal rod “when and as the location of [the] pipe lines * * * shall be established, surveyed and measured.” The easement agreement did not specify the pipeline location or the easement width.

*330 On appeal, appellants argue that the easement agreement limits respondent to one pipeline location on the farm. They claim the construction of a second pipeline at a different route across the farm necessitates a negotiated purchase of a new easement agreement or commencement of condemnation proceedings. Respondent, on the other hand, argues that it is entitled under the easement agreement to install a replacement gas pipeline at any location on appellants’ property.

Under the plain language of the easement agreement, respondent is entitled to replace the existing pipeline. At issue, however, is whether there is any limit on the location of a replacement pipeline, an issue of first impression in Minnesota.

In situations such as this, where the easement does not specify the right of way, courts in other jurisdictions have long held that once an easement has been “used,” it becomes “fixed.” See Kleinheider v. Phillips Pipe Line Co., 528 F.2d 837, 842 n. 4 (8th Cir.1975) (prevailing law is that original pipeline set course of petroleum transmission system); Bradley v. Arkansas La. Gas Co., 280 Ark. 492, 659 S.W.2d 180, 182 (1983) (“Undesignated grants of rights of way may be termed ‘floating rights of way’ until located and utilized but thereafter such easements become fixed.”); Colvin by Colvin v. Southern Cal. Edison Co., 194 Cal.App.3d 1306, 240 Cal.Rptr. 142, 146 (1987) (use of easement granted in general terms fixes location, nature, and extent of use); Mielke v. Yellowstone Pipeline Co., 73 Wash.App. 621, 870 P.2d 1005, 1006 (1994) (when easement grant does not specify location, initial selection of location fixes easement location), review denied (Wash. Oct. 6, 1994).

Use of an easement does not, however, necessarily “fix” the easement to the precise width of the “as built” pipeline.

Every easement carries with it the right to do whatever is reasonably necessary for the full enjoyment of the easement itself. The extent to which such incidental rights may be exercised depends upon the object and purpose of the grant and whether such rights are limited by the terms of the grant creating the easement.

Knox v. Pioneer Natural Gas Co., 321 S.W.2d 596, 601 (Tex.Civ.App.1959). Further:

It is often said that the parties are to be assumed to have had in contemplation such a scope for the created easement as would reasonably serve the purposes of the grant.

Kleinheider, 528 F.2d at 842 (quoting 3 Powell on Real Property, § 415 at 508); see also Hoelscher v. Simmerock, 921 S.W.2d 676, 679 (Mo.Ct.App.1996) (if exact easement location is not described, grantee is entitled to convenient, reasonable, and accessible use); Col-vin, 240 CaLRptr.

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Related

Scherger v. Northern Natural Gas Co.
575 N.W.2d 578 (Supreme Court of Minnesota, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
562 N.W.2d 328, 1997 WL 191833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scherger-v-northern-natural-gas-co-minnctapp-1997.