[Cite as Strahm v. Buckeye Pipe Line Co., L.P., 2011-Ohio-1171.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
ROBERT C. STRAHM, ET AL., CASE NO. 1-10-60
PLAINTIFFS-APPELLANTS,
v.
BUCKEYE PIPE LINE COMPANY, L.P., OPINION
DEFENDANT-APPELLEE.
Appeal from Allen County Common Pleas Court Trial Court No. CV 2009 1319
Judgment Reversed and Cause Remanded
Date of Decision: March 14, 2011
APPEARANCES:
Bernard K. Bauer for Appellant
Paul J. Coval for Appellee Case No. 1-10-60
WILLAMOWSKI, J.
{¶1} Plaintiffs-Appellants, Robert C. Strahm and Donna J. Strahm
(“Appellants” or “the Strahms”), appeal the decision of the Allen County Court of
Common Pleas granting partial summary judgment in favor of Defendant-
Appellee, Buckeye Pipe Line Company, L.P. (“Buckeye”). The Strahms maintain
that the pipe line easements across their land did not contain any explicit language
that would permit Buckeye to clear all the trees, shrubs and vegetation from the
easements without providing compensation. For the reasons set forth below, the
judgment is reversed.
{¶2} The Strahms filed an action for declaratory judgment and damages
regarding a dispute concerning the duties and responsibilities of the parties under
four pipe line easements affecting two adjacent parcels of property owned by the
Strahms. The dispute in question began when Buckeye cleared all of the trees,
shrubs and vegetation from an area on the Strahms’ two properties which
included, but may not have been limited to, the pipeline rights-of-way.
{¶3} In 1984, Mr. Strahm purchased two parcels of land (the “northern
parcel” and the “southern parcel”) in Richland Township. At the time of purchase,
each piece of property was subject to separate pipe line easements originally
granted to Sohio Pipe Line Co. (“Sohio”) and Trans-Ohio Pipeline Co. (“Trans-
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Ohio”). Buckeye is the successor in interest to the Sohio and Trans-Ohio
easements.
{¶4} In 1947, Sohio obtained blanket easements over both parcels to “lay,
maintain, operate, repair, replace and remove a pipe line and all necessary fixtures,
equipment and appurtenances thereto ***.” The easements also specified the
rights to the premises that were reserved to the grantors of the right-of-way and
their successors:
Grantor and Grantor’s heirs and assigns reserve the right fully to use and enjoy the said premises except insofar as such use and enjoyment shall be inconsistent with the exercise by the Grantee of the rights herein granted to it.
(Sohio 1947 Easement.) The Sohio easements also provided for compensation to
the landowner in the event of damages as a result of exercising the easement
rights:
The Grantee *** agrees to bury said pipe line so that it will not interfere with the cultivation of the land and also to pay any damages to crops, buildings, drain tile, fences and timber arising from the exercise by the Grantee of any of the rights herein conferred upon it.
(Id.)
{¶5} Sometime later, in 1973, Trans-Ohio also obtained two separate
easements to “construct, lay, maintain, operate, alter, repair, remove, change the
size of, and replace a pipe line and appurtenances thereto ***” over both the
northern and southern parcels. These easements provided for a right-of-way
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which extended 15 feet on each side of the pipe line. The Trans-Ohio easements
also specified the rights of the landowners as to their use and enjoyment of the
easements, although they contained somewhat different wording than the Sohio
easements as to the Grantors’ retained rights and the provisions for compensation.
Grantors are to fully use and enjoy the said premises, except for the purposes granted to the said Grantee and provided that the said Grantors shall not construct nor permit to be constructed any house, structures or obstructions on or over, or that will interfere with the construction, maintenance or operation of, any pipe line or appurtenances constructed hereunder, and will not change the grade over such pipe line.
(Trans-Ohio 1973 Easement.) These easements specified that Trans-Ohio would
be responsible for the payment of damages to “crops, timber, or fences” from the
construction of the pipe lines and, thereafter:
to pay such damages which may arise to growing annual crops or fences from the maintenance, alteration, repair, removal, change of the size, or replacement thereof.
{¶6} After he purchased the properties, Mr. Strahm entered into an
agreement with the National Conservation Reserve Program to plant trees and
shrubs on his property in order to create a wildlife habitat and help preserve
natural resources. Between 1988 and 1994, Mr. Strahm planted specified grasses
as well as dogwoods, white pines and ash trees, pursuant to the recommendations
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of the conservation organization. The Strahms did not believe that their plantings
were inconsistent with their rights to use their land according to the easements.
{¶7} However, on November 14, 2001, Buckeye’s Regional Right-of-Way
Agent, Martin White (“Mr. White”) sent Mr. Strahm a letter documenting the fact
that the easements contained substantial pine and hardwood trees. The letter
stated that Buckeye had attempted to clear the right-of way in 1997 and again in
2001, but that the Strahms had refused to allow the work to be done. The letter
stated that “[t]rees are a non-permitted use of the right-of-way as they are
substantial impediments for access to and workspace around the pipe lines during
either routine or emergency pipe line maintenance work.” (Plaintiff’s Ex. 4 to the
2009 Dep. of Mr. White.) Mr. White was going to “review the easements more
thoroughly” and complete a report before the end of the year.
{¶8} On November 21, 2001, and again on July 30, 2002, Mr. Strahm sent
letters to Mr. White asking Buckeye to send him “all easements relating to [my
properties] including all restrictions and regulations involving these easements.”
In his deposition, Mr. White testified that he did not recall that he had ever
provided Mr. Strahm with the information he had requested.
{¶9} On October 1, 2007, Buckeye sent the Strahms a letter informing them
of Buckeye’s intention to clear the trees and vegetation from the 30-foot wide
easements (15 feet on each side of the pipe line) by the latter part of the month,
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stating that “Buckeye cannot access or maintain its pipe line under present right-
of-way conditions.” (Plaintiffs’ Complaint, Ex. 5.) In the letter, Mr. White
acknowledged that he had capitulated to the Strahms’ objections in the past, but
that current easement conditions inhibited Buckeye’s ability to maintain regulatory
compliance, including patrolling the corridor by air in search of pipe line failure.
The letter stated:
You purchased this property subject to Buckeye’s easement rights. A ‘nature preserve,’ Pheasants Forever habitat, and commercial tree nursery activities are contrary to the spirit and intent of the easement grant and as such are non-permitted uses of the right of way. *** Consequently, the trees/vegetation have grown into substantial impediments for the safe and practical operation and maintenance of the pipe line.
(Id.) The letter stated that it was intended as a “courtesy notification,” not as “a
negotiation or debate of easement rights.” (Id.)
{¶10} On October 23 and 24, 2007, Buckeye removed all of the trees and
brush, and completely mowed the fields in the easements to prevent the potential
regrowth of seedlings. Mr. White explained why they mowed all of the
vegetation, in addition to just removing the trees and shrubs:
Right of way clearing is preventive maintenance. The longer we delay, the worse it becomes; and so, we wanted to mow this at this point in time -- as a matter of vegetation maintenance.
(White Dep. at pp. 23-24.)
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{¶11} The Strahms filed a complaint1 for declaratory judgment and
damages. The Strahms maintained that Buckeye’s complete clearing of the entire
area of the easements went beyond the rights granted by the explicit language of
the easements. The Strahms also claimed that Buckeye cleared and damaged land
and property that was not within the easements, specifically, that Buckeye cleared
a path in excess of 30 feet at some points (up to 100 feet wide); that Buckeye left
ruts in the land; and that Buckeye destroyed a small bridge that was not within the
easement. Buckeye denies these claims. The complaint for declaratory judgment
asked the court to resolve the controversy as to whether the easements permitted
Buckeye to enter the properties “to clear vegetation” and not “to construct, lay,
maintain, operate, alter, repair, remove, change the size of, [or] replace” a pipe
line. The Strahms also requested compensation, claiming that Buckeye removed
and damaged trees and shrubs having a total replacement value of over $222,000,
and that Buckeye caused additional damages on and off the rights-of-way totaling
$16,500.
{¶12} Buckeye denied all of the Strahms’ assertions and filed a motion for
partial summary judgment on June 15, 2010.2 Buckeye argued that the easements
1 The Strahms originally filed their complaint on September 17, 2008, Case No. CV 2008 1361. However, they referenced only the Trans-Ohio easements in that complaint. After discovering the omission of the Sohio easements, the Strahms voluntarily dismissed that complaint and re-filed this Case No. CV 2009 1319 on December, 11, 2009, seeking essentially the same relief based on the same allegations. 2 On March 12, 2010, the trial court entered its pre-trial order setting the case schedule. Cross-motions for summary judgment were to be filed by June 15, 2010, with any responses filed within 30 days after any motions were filed.
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permitted Buckeye to remove timber during maintenance and otherwise permitted
Buckeye to remove obstructions, including trees, shrubs, and vegetation, that
interfered with its right to access and maintain its pipe lines. Buckeye asserted
that the language of the respective easements, along with Ohio law, established
Buckeye’s rights to clear the easements. Buckeye maintained that the easements
contemplated such removal because it is “reasonably necessary and convenient” to
facilitate Buckeye’s access and maintenance of the pipe lines, and that the removal
of vegetation facilitated compliance with Federal requirements. (Buckeye’s Mtn.
for Sum. Judgmt., pp. 7-8.) Buckeye asserted that the trees, shrubs, and vegetation
were removed because they constituted “substantial impediments for the safe and
practical operation and maintenance” of the respective pipe lines. (Id. at 9.)
Buckeye further proposed that even if the easements did not explicitly give
Buckeye the right to remove the vegetation from the rights-of-way, the
surrounding circumstances and consideration of what is “reasonably necessary and
convenient” supports the conclusion that Buckeye is permitted to remove those
items within its rights-of-way. (Id.) Furthermore, the terms of the easements did
not require Buckeye to compensate the Strahms for the removal of such
“obstructions.”
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{¶13} The Strahms responded with a cross-motion for partial summary
judgment on July 15, 2010,3 arguing that the explicit language contained in the
respective easements did not unambiguously permit Buckeye to remove trees,
shrubs and vegetation from its rights-of-way without compensation to the Strahms.
The Strahms argued that Buckeye’s actions were improper because the mowing of
the easements was not done in conjunction with laying, maintaining, operating,
repairing, replacing or removing a pipe line. In addition to the absence of explicit
language giving Buckeye the right to clear the easements for the sake of clearing
them, the Strahms also asserted that there was no prohibition against planting trees
in the rights-of-way because the language in the easements only prohibited the
construction of a house, structure, or obstruction in the rights-of-way, but it did
not prohibit the planting of trees. The Strahms also asserted that Buckeye’s
acquiescence to the presence of the trees over a period of years may be considered
an estoppel. And finally, the Strahms maintained that federal regulations did not
give Buckeye the implicit right to remove the trees, shrubs and vegetation.
{¶14} On August 2, 2010, the trial court issued its decision granting partial
summary judgment in favor of Buckeye, finding that (1) both easements gave
Buckeye the right to remove trees, shrubs and other vegetation from the rights-of-
way as an exercise of their “maintenance” rights; and, (2) the Trans-Ohio
3 Buckeye maintains that the Strahms’ cross-motion for summary judgment was untimely. See fn. 2.
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easements did not require Buckeye to compensate the Strahms for the removal of
trees when exercising its rights under the easements. However, because the Sohio
easements required Buckeye to compensate the Strahms for the removal of trees in
the easements when exercising its rights, there remained a genuine issue of
material fact as to (1) whether the Strahms’ conduct constituted an “interference or
obstruction” with Buckeye’s rights, in which case compensation is not required;
and, (2) whether Buckeye exceeded its rights under the easement or otherwise
unlawfully entered upon the Strahms’ property and caused damages.
{¶15} The Strahms timely appeal and raise the following two assignments
of error for our review.
First Assignment of Error
The Trial Court committed error prejudicial to the [Strahms] as a matter of law, by entering a declaratory judgment in favor of [Buckeye] which permitted it to remove trees, shrubs and vegetation to facilitate aerial inspection of pipeline rights of way, without compensation, when the Trans-Ohio easements which granted rights to it did not contain any explicit language regarding its proposed right of way clearing work.
Second Assignment of Error
The Trial Court committed error prejudicial to the [Strahms] as a matter of law, by entering a declaratory judgment in favor of [Buckeye] which permitted it to remove trees, shrubs and vegetation to facilitate aerial inspection of pipeline rights of way, when the Sohio easements which granted rights to it did not contain any explicit language regarding its proposed right of way clearing work.
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{¶16} The arguments in the Strahms’ two assignments of error assert that
the explicit language in the Trans-Ohio easements (first assignment of error) and
the Sohio easements (second assignment of error) did not permit Buckeye to enter
upon the easements for the sole purpose of clearing vegetation. We shall address
both assignments of error together, as they raise essentially the same issues.
{¶17} Appellate courts review decisions on summary judgment de novo,
viewing the facts as most favorable to the non-moving party and resolving any
doubt in favor of that party. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,
1996-Ohio-336, 671 N .E.2d 241. Because it is a procedural device that
terminates litigation, summary judgment must be awarded with caution. Ormet
Primary Aluminum Corp. v. Employers Ins. of Wausau, 88 Ohio St.3d 292, 2000-
Ohio-330, 725 N.E.2d 646.
{¶18} Summary judgment is appropriate where there are no genuine issues
as to any material fact and the moving party is entitled to judgment as a matter of
law. Civ.R. 56(C). “Summary judgment shall not be rendered unless it appears
*** that reasonable minds can come to but one conclusion and that conclusion is
adverse to the party against whom the motion for summary judgment is made
***.” Civ.R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 364
N.E.2d 267. “The purpose of summary judgment is not to try issues of fact, but is
rather to determine whether triable issues of fact exist.” Schnippel Constr., Inc. v.
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Profitt, 3d Dist. No. 17-09-12, 2009-Ohio-5905, ¶10, quoting Lakota Loc. Schools
Dist. Bd. of Edn. v. Brickner (1996), 108 Ohio App.3d 637, 643, 671 N.E.2d 578.
{¶19} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions
of the record that demonstrate the absence of a genuine issue of material fact on an
essential element of the nonmoving party's claims. Dresher v. Burt, 75 Ohio St.3d
280, 293, 1996-Ohio-107, 662 N.E.2d 264. The moving party does not discharge
this initial burden under Civ.R. 56 by simply making a conclusory allegation that
the nonmoving party has no evidence to prove its case. Id.; Vahila v. Hall, 77 Ohio
St.3d 421, 1997-Ohio-259, 429, 674 N.E.2d 1164. “Rather, the moving party must
be able to specifically point to some evidence of the type listed in Civ.R. 56(C)
which affirmatively demonstrates that the nonmoving party has no evidence to
support the nonmoving party's claims.” (Emphasis sic.) Dresher at 293, 662
N.E.2d 264.
{¶20} If the moving party meets this burden, the non-moving party then has
a reciprocal burden to establish the existence of genuine issues of material fact.
Id. “When reviewing a trial court's ruling on summary judgment, the court of
appeals conducts an independent review of the record and stands in the shoes of
the trial court. Mergenthal v. Star Banc Corp. (1997), 122 Ohio App.3d 100, 103,
701 N.E.2d 383.
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{¶21} In this case, both parties agree with the undisputed fact that both the
Trans-Ohio and the Sohio easements give Buckeye the right to “maintain” the pipe
lines. The dispute arises from a difference in the parties’ understanding as to what
it means to “maintain” the pipe lines. The primary issue is whether that language
in the easements gives Buckeye the right to clear all trees, shrubs, and vegetation
over the entire area of the easements even when such clearing is not done in
conjunction with any other work on the pipe line. And, if it does, is Buckeye
required to compensate the Strahms for the removal of the timber from the Sohio
easement?
{¶22} An easement is an interest in the land of another that entitles the
owner of the easement (the dominant estate) to a limited use of the land (the
servient estate). Crane Hollow, Inc. v. Marathon Ashland Pipe Line, LLC (2000),
138 Ohio App.3d 57, 66, 740 N.E.2d 328; Alban v. R.K. Co. (1968), 15 Ohio St.2d
229, 231, 239 N.E.2d 22, 23-24. When an easement is created by an express
grant, as in this case, the extent and limitations upon the dominant estate's use of
the land depend upon the language in the grant. See Alban at 232, 239 N.E.2d at
24; Columbia Gas Transm. Corp. v. Bennett (1990), 71 Ohio App.3d 307, 318,
594 N.E.2d 1, 7-8. When the terms in an easement are clear and unambiguous, a
court cannot create a new agreement by finding an intent not expressed in the clear
language employed by the parties. Alexander v. Buckeye Pipe Line Co. (1978), 53
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Ohio St.2d 241, 246, 374 N.E.2d 146, 150. The language of the easement,
considered in light of the surrounding circumstances, is the best indication of the
extent and limitations of the easement. Lakewood Homes, Inc. v. BP Oil, Inc., 3rd
Dist. No. 5-98-29, 1999-Ohio-851, citing Apel v. Katz, 83 Ohio St.3d 11, 17,
1998-Ohio-420, 697 N.E.2d 600. However, courts have held that normal
developmental changes and new inventions could entitle an easement holder to
vary the mode of enjoyment and use of the easement. See, e.g., Crane Hollow,
138 Ohio App.3d at 67.
{¶23} In their complaint, the Strahms allege that the explicit language in
the easements grants Buckeye the right to utilize the easements to “maintain *** a
pipe line.” (Emphasis added.) However, there is no explicit language giving
Buckeye the right to maintain the easements or to enter upon the right-of-way for
purposes other than those specified. Even Mr. White acknowledged that the
easements do “not contain any explicit language regarding Buckeye’s proposed
right-of-way clearing work.” (Complaint, Ex. 5; see also White Dep., p. 30.) It
was undisputed that no maintenance or operational work was being done on the
pipe lines when the clearing was done.
{¶24} However, Buckeye maintains that the removal of all of the trees and
vegetation from the entire easement area is necessary for its proper maintenance of
the pipe line. Mr. White has indicated that clearing vegetation is part of
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Buckeye’s standard practice of “preventative maintenance” and was a matter of
“vegetation maintenance.” (White Dep., p. 23-24.)
{¶25} The question as to what constitutes maintenance of a pipe line under
the Trans-Ohio and Sohio easements appears to raise a genuine issue of material
fact that would preclude summary judgment. In fact, the trial court even noted in
its judgment entry that “as the Third District stated in Voisard v. Marathon
Ashland Pipe Line, these are factual inquiries ***. (Aug. 2, 2010 J.E., pp. 6-7,
Voisard v. Marathon Ashland Pipeline, LLC., 3d Dist. No. 9-05-49, 2006-Ohio-
6926, ¶7, stating “the issues presented in this type of case are questions of fact,
which must be resolved on a case-by-case basis.”)
{¶26} Buckeye has set forth numerous arguments as to why it should be
permitted to clear the easements as it wishes. However, we do not find that
Buckeye has pointed to any admissible facts in the record to support the
contention that such clearing constitutes necessary “maintenance” under the terms
of the relevant easements and the facts in this case. Although not necessarily
required to do so, neither party submitted any affidavits or other types of Civ.R. 56
evidence. Even the depositions of Mr. Strahm and Mr. White were not filed in this
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case -- copies were merely attached to Buckeye’s motion for summary judgment.4
Buckeye’s arguments, along with unsubstantiated, conclusory opinions stated by
Mr. White in letters to the Strahms, do not constitute evidence that would entitle
Buckeye to summary judgment.
{¶27} For example, Buckeye has asserted that the trees had to be removed
because their roots could interfere with the pipe line. While that might certainly
be one reason to justify Buckeye’s removal of the trees, we did not find any
evidence anywhere in the record as to how deep the pipe lines were buried, how
deep the roots of the trees extended, or whether there was any actual or likely
infringement upon the pipe line by any tree roots. In fact, none of Buckeye’s
assertions were supported by the type of admissible summary judgment evidence
that would establish the necessity of clearing the easements as a function of
“maintaining a pipe line.”
{¶28} Buckeye also made many legal arguments, citing cases where courts
determined that a pipe line company was entitled to remove trees and vegetation
from the rights-of-way in order to maintain the pipe lines. However, many of
4 Civ.R. 56(C) states that “judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule.” (Emphasis added.) But, see, e.g., Whanger v. Grange Mut. Cas. Co., 7th Dist. No. 06-JE-18, 2007-Ohio-3187, ¶9 (unfiled deposition was not proper summary judgment evidence, but it was within the trial court’s discretion to consider the conforming summary judgment evidence when no objection was made by the parties.) The parties did not object in this case. However, we note that some of the photographic exhibits referenced in the depositions were not included anywhere in the record.
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these cases were decided after a trial wherein both sides had an opportunity to
present their evidence and the courts’ decisions were based upon factual
testimony, often from expert witnesses. See, e.g., Andrews v. Columbia Gas
Transm. Corp. (C.A.6, 2008), 544 F.3d 618, 622 (summary judgment was denied
and case proceeded to trial).
{¶29} Furthermore, other cases cited by Buckeye were distinguishable in
that the relevant facts and issues were different and/or the controlling language in
the easements was different. For instance, in Voisard v. Marathon, supra, this
Court held that Marathon could maintain the pipe line as it believed was
necessary. 2006-Ohio-6926 at ¶8. However, the language in that particular
easement provided Marathon “‘the right of way to lay, maintain, operate and
remove a pipe line, if the same shall be thought necessary by said grantee[.]’”
(Emphasis sic.) Id. Buckeye’s easements do not contain such broad language. In
another case, the easement originally contained language similar to that in the
easements before us now. However, several decades later, an amended easement
was negotiated and the new language prohibited the planting or permitting of any
trees or non-shrubbery woody growth anywhere over the specified right-of-way.
Panhandle Eastern Pipeline Co. v. Howey, 6th Dist. No. L-01-1037, 2001 WL
1155838, 1. The Strahms’ easements have not been renegotiated to include any
language prohibiting trees and non-shrubbery growth. And, in a case highly relied
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upon by Buckeye, the language of the easement also contained the word “inspect,”
which is absent from the terms in this case. Rueckel v. Texas Eastern Transm.
Corp. (1981), 3 Ohio App.3d 153, 156, 444 N.E.2d 77 (the easement conveyed the
right to “lay, operate, renew, alter, inspect and maintain a pipe line ***.”)
{¶30} Buckeye points to some cases where courts permitted tree removal in
order to allow for aerial inspection of the pipe line. See, e.g., Voisard v.
Marathon, supra. But, see, Lakewood Homes v. B.P., 1999-Ohio-851 (“[the pipe
line company] did not present any evidence to the trial court that demonstrates that
its maintenance and inspection could not be carried out in a manner which did not
impose additional burdens on Lakewood Homes’ servient property.”) While we
acknowledge that the necessity of aerial inspection may, under certain
circumstances, require a pipe line company to clear some trees from an easement,
the testimony concerning that need in this case was ambiguous and raised
questions of fact. Mr. White stated that they “have to patrol” the pipe line, and it
could be accomplished by walking it or by aerial inspection. (White Dep., pp. 24-
25.) Aerial inspection was just one of “several reasons” why Buckeye maintained
the rights-of-way. (Id.) There was also testimony that another pipe line company
also had an easement through the Strahms’ properties and that company had not
cut down trees in order to patrol their pipe line. (Id.)
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{¶31} Buckeye also cited several cases for the proposition that it was
entitled to do what was “reasonably necessary and convenient” to maintain the
rights-of-way. However, the cases cited using that language involved situations
in which the width or dimensions of the right-of-way was not specified in the
language of the easement, and that was the standard used by the courts to
determine what the size of the easement should be. See, e.g., Pomante v.
Marathon Ashland Pipe Line L.L.C., 187 Ohio App.3d 731, 2010-Ohio-1823, 933
N.E.2d 831, ¶10 (when establishing the dimensions of an easement, the trial court
must consider what is “reasonably necessary and convenient” to serve the purpose
for which the easement was granted.) See, also, Voisard v. Marathon, supra;
Crane Hollow, 138 Ohio App.3d at 67-68, 740 N.E.2d at 334. In those cases, the
trial courts heard evidence as to what was “reasonably necessary and convenient”
in order to determine what were the equitable limitations of the dimensions of the
easement; not necessarily what was “reasonably necessary and convenient” as to
the utilization of the easement.
{¶32} And, concerning the issue of the appropriate dimensions of an
easement, we do not find where the width of the 1947 Sohio right-of-way was
delineated in the easement. This is an issue of fact that the trial court must
determine in order to ascertain whether Buckeye removed trees and vegetation
beyond the bounds of the easements if those boundaries were not specified. See,
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e.g., Crane Hollow, 138 Ohio App.3d at 67, 740 N.E.2d at 334 “(when the
intended dimensions of an easement are not expressed in the grant itself,
determining the dimensions becomes largely a question of fact ***.”)
{¶33} Buckeye asserts that the easements not only give Buckeye the right
to remove timber during the construction of the pipe line, but that Buckeye may
also remove timber during maintenance of the pipe line. We agree. However, the
record clearly shows that Buckeye was not doing any maintenance on the pipe line
at the time of the clearing. Many of the cases relied upon by Buckeye held that it
was permissible to remove trees from an easement, but they involved issues that
arose when the easement grantee sought to repair or do specific maintenance on a
pipe line. See, e.g., Crane Hollow, supra, (where the grantee wanted to repair and
reopen a pipe line which had been capped several years earlier); Rueckel v. Texas
Eastern Transm. Corp., 3 Ohio App.3d at 156, 444 N.E.2d at 80 (the trees did not
create a problem until November 1977, when Texas Eastern was engaged in the
installation of a cathodic protection system designed to protect the pipe lines from
corrosion.)
{¶34} We also note that the trial court prefaced its summary judgment
decision with the statement that “It should be noted that this case is not and should
not be decided in a vacuum or in isolation. Rather, we are a nation dependent
upon oil. ***” (Emphasis added.) The trial court then referenced the Gulf of
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Mexico BP oil spill and a recent spill into the Kalamazoo River, commenting that
pipe line companies do not have an easy job of inspecting and maintaining pipe
lines. However, for the purposes of summary judgment, Civ.R. 56(C) does require
that the decision be made utilizing only the specific summary judgment evidence
set forth in the rule. “No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears
from the evidence or stipulation, and only from the evidence or stipulation, that
reasonable minds can come to but one conclusion ***.” (Emphasis added.)
Civ.R. 56(C). Buckeye alluded to the necessity of clearing the easement so that it
could quickly and easily access its pipe line for maintenance or in the event of
emergency. But again, there was no actual evidence in the record as to how often
a company might need to access its pipe line (for either routine work or emergency
purposes), how much of the pipe line would need to be accessed, whether the
presence of vegetation on the right-of-way would actually cause a significant
problem, and how large of an area was reasonably necessary to be cleared for
those purposes.
{¶35} If there was evidence in the record that the vegetation on the
easements was interfering with Buckeye’s actual maintenance of the pipe line,
Buckeye would have the right to remove the offending vegetation. However, we
do not grant summary judgment on mere speculation. The burden of showing that
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no genuine issue exists as to any material facts falls upon the moving party.
Without uncontroverted evidence that it was necessary for Buckeye to clear all
vegetation from all areas of the easements in order to “maintain” its pipe line,
summary judgment was not proper. Appellants’ first and second assignments of
error are sustained.
{¶36} Having found error prejudicial to the appellant herein in the
particulars assigned and argued, we reverse the judgment of the trial court and
remand for further proceedings consistent with this opinion.
PRESTON, J., concurs.
/jnc
ROGERS, P.J., concurs separately.
{¶37} I concur with the majority opinion, but write separately to stress my
position that pipeline cases in Ohio have given too much latitude to the pipeline
companies to unilaterally interpret and expand their “rights” under easements.
The usual standards for interpretation of the contracts for easements should be
applied in all such cases and not expanded without compensation simply because
some new Federal regulation imposes new duties upon the companies. Nor should
the right to clear trees and brush be expanded without compensation simply
because some new invention, such as an airplane, makes inspection easier and/or
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more economical if done in a manner not contemplated by those who executed the
contract. As I stated in my dissent in Voisard v. Marathon:
I am troubled by what I perceive to be a departure from general contract principles in pipeline cases. In general, these departures routinely favor pipeline companies and grant rights which were clearly not within the reasonable contemplation of property owners at the time the easements were signed. One of the cornerstones of contract law is to ascertain the intent of the parties at the time they entered into the contract. I do not believe that, at the time these parties entered into the agreement, either contemplated federal regulation of gas companies to the extent that they are regulated today. Nor do I believe the parties contemplated the use of aerial surveillance to achieve the regulatory mandates. On that issue, I would follow this court's holding in Lakewood Homes, Inc. v. BP Oil, Inc., 3d Dist. No. 5- 98-29, 1999 Ohio 851.
Voisard v. Marathon Ashland Pipeline, LLC., 3d Dist. No. 9-05-49, 2006- Ohio-6926, ¶12 (Rogers, J., Dissenting).
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