Columbia Gas Transmission, LLC v. Grove Avenue Developers Inc.
Filing
69
Opinion and Order: the Court GRANTS Columbia's request for a declaration that the crossing as proposed by Grove, would violate Columbia's rights under the ROW Agreements. The Court DENIES Grove's request for declaratory relief thatwould permit Grove to proceed with the development as proposed. Signed by Chief District Judge Mark S. Davis on 1/8/2019. Copies distributed.(dcou, )
JAN
UNITED STATES DISTRICT COURT
8 2019
EASTERN DISTRICT OF VIRGINIA
Norfolk Division
COLUMBIA GAS TRANSMISSION, LLC,
Plaintiff,
Civil No. 2:17cv483
V.
GROVE AVENUE DEVELOPERS, INC.,
Defendant.
OPINION and ORDER
This
matter
is
before the
Court following a bench
trial
resulting from an easement dispute in which both parties seek a
declaratory
judgment.
Such
dispute
arises
from
Grove
Avenue
Developers, Inc.'s (''Grove" or "Defendant") desire to construct an
asphalt
roadway
crossing
over
two
high
pressure
natural
gas
pipelines (the "Pipelines") operated by Columbia Gas Transmission,
LLC ("Columbia" or "Plaintiff").
Col\jmbia filed the instant action
seeking an injunction and declaratory judgment prohibiting Grove
from
building
the
planned
roadway across
Columbia's
easement.
Grove, in turn, seeks a declaration that it be allowed to construct
the proposed roadway because such crossing does not unreasonably
interfere with Columbia's easement rights.
I. Findings of Fact
A. Preliminary Summary
It is undisputed that the real property that Grove seeks to
develop into a small condominium complex is owned by Grove subject
to Columbia's easement to **lay, maintain, operate and remove a
pipe line, or pipe lines."
the
holder
easement
of
the
require
EOF No. 20-2.
dominant
Columbia
estate,
to
the
maintain
Although Columbia is
teirms
its
of
the
Pipelines
written
''below
cultivation, so that the Grantors may fully use and enjoy the
premises, subject to the right of the Grantee to maintain and
operate said line or lines."
Id.
Notwithstanding Columbia's view that it has the authority to
categorically prohibit Grove (and presumably other landowners)
from constructing any roads across Columbia's buried transmission
pipelines, Coliimbia is willing to allow a crossing on Grove's
property, but only if Grove first agrees to pay for the following
costly
mitigation
measures:^
(1)
excavation
of
the
Pipelines
passing under the proposed roadway; (2) removal of the Pipelines'
protective coatings to allow a visual inspection of the Pipelines,
followed by installation of new protective coatings; and (3) the
' A degree of confusion exists as to whether Coliiinbia asserts that it has
the legal authority to block any and all crossings irrespective of the
manner of construction. It appears to the Court that Columbia's viewpoint
is that it could block all crossings, but that it does not seek to do so,
either in this case, or in similar factual scenarios (as reflected in
Columbia's own published policies and procedures).
installation
of
"flowable
fill"
over
and
around
the
excavated
Pipelines.2 Grove, however, maintains that the mitigation measures
demanded by Columbia, which are estimated to cost several hundred
thousand dollars, are unnecessary because the scientific evidence
demonstrates that Grove's proposed crossing will not endanger the
integrity of Columbia's buried Pipelines.
Grove also disputes
Col\ambia's contention that the road crossing proposed by Grove, by
its
nature,
unreasonably
interferes
with
Columbia's
maintain, inspect, and repair its pipelines.
evidence
hinged,
in
large
part,
on
the
right
to
Each party's trial
testimony
of
their
respective expert witness.
B. Stipulated Facts^
1. Columbia is a Delaware limited liability company . . .
[that]
natural
maintains
gas
and
operates
transmission
approximately
pipeline
15,000
throughout
the
miles
of
country,
including hundreds of miles of pipeline in Virginia.
2. Grove Avenue is a Virginia corporation . . . [that] owns
certain land in the City of Suffolk, Virginia (the ''Property").
3. Grove Avenue acquired ownership of the Property by deed.
^ As described at trial, "flowable fill" is a pourable mixture similar to
concrete that, when mixed correctly, can be excavated with hand tools.
^ The following facts were stipulated by the parties prior to trial.
EOF
Nos. 20, 40. The Court has altered the numbering on such stipulated facts
and omitted certain additional stipulations for the sake of brevity.
4. On or about October 12, 1950,
Rountree")
and
("Commonwealth")
Commonwealth
Victoria Rountree
Natural
Gas
(''Ms.
Corporation
executed an agreement granting Commonwealth a
right of way through the Property for the installation, operation
and maintenance of one or more pipelines (the "Easement") in
exchange for the payment of $568.00.
5. On or about November 16, 1964, Commonwealth and Rountree
Dairy, Inc., the then-owner of the Property ("Rountree Dairy,"
together with Ms. Rountree, the "Original Grantors") entered into
a modification agreement clarifying the width and location of the
easement created under the Right of Way Agreement.
6. The Right of Way Agreement and the Modification Agreement
(together, the "ROW Agreements") created a valid and enforceable
Easement and right-of-way across the Property.
7.
Columbia
is
the
successor-in-interest
to
Commonwealth
under the ROW Agreements and, therefore, possesses all the rights
of Commonwealth under the ROW Agreements.
8. Grove Avenue is the successor-in-interest to the Original
Grantors under the ROW Agreements with respect to the Property
and, therefore, possesses all the rights of the Original Grantors
under the ROW Agreements.
9. The Easement is 80 feet in width and runs parallel to
Hillpoint Boulevard along the northern edge of the Property.
10. Pursuant to the ROW Agreements, Columbia operates and
maintains two high pressure natural gas transmission pipelines
known as Lines VM107 and VM108 (the ''Pipelines").
11.
VM107
was
installed
in
or
about
1950
and
VM108
was
installed in or about 1961.
12. Line VM107 is a twelve (12) inch in diameter high-pressure
natural gas transmission pipeline.
13.
Line VM108
is
a sixteen (16) inch in
diameter high-
pressure natural gas transmission pipeline.
14. Line VM107 and Line VM108 were installed below cultivation
on the Property and are within the width of the Easement.
15. The Pipelines are a substantial source for the delivery
of natural gas to the Tidewater area of Virginia.
16.
Columbia's
daily
revenue
from
the
operation
of
the
Pipelines exceeds $45,000.00.
17. The segment of the Pipelines at issue in this case is a
"high consequence area" as described by 49 CFR § 192.903.
18. Grove Avenue intends to engage in certain construction
activities, including the construction of a twenty-six (26) foot
wide paved asphalt roadway crossing over the Pipelines and the
installation of a water line under the Pipelines (collectively,
the "Construction Activities").^
'* Prior to trial, the parties disputed whether a water line desired by Grove
and crossing under Columbia's Pipelines could be safely/lawfully installed
19. The Construction Activities are part of Grove Avenue's
planned 17-unit housing development to be known as Addison Place
Condominiums.
20. Based on the available data concerning the condition of
the
Pipelines,
currently
it
required
is
Columbia's
on
the
contention
Pipelines
that
absent
no
the
work
is
proposed
construction of a road by Grove Avenue.
C. Facts Determined by the Court as Factfinder
1. Testing Protocol & Repairs
21. Columbia performs various testing procedures to monitor
the integrity of its Pipelines, including aerial surveillance,
ground surveillance, testing of the ''cathodic protection system"
designed to prevent the steel Pipelines from corroding, and ''pig"
surveys that inspect and test the Pipelines from the inside.
22. Columbia obtains the most detailed Pipeline integrity
information through the use of a "smart pig," which is an in-line
inspection tool that is run through the inside of the Pipelines
every seven years to gather information on anomalies such as dents,
cracks,
wall
loss
from
corrosion,
and
manufacturing
defects.
without first excavating Columbia's Pipelines. Such issue was resolved by
the parties after Grove learned that there is a cost-effective manner to
"bore" the water line under the Pipelines using a method that comports with
Columbia's requirements.
Grove alternatively notes that the water-line
dispute, even if not resolved, could be avoided entirely as Grove has a
feasible, albeit more expensive, option of routing its water line to an
adjacent property that would not involve crossing Columbia's Pipelines.
Columbia's Pipelines on the Property were last "pigged" in 2013
and 2014.
23. The Pipelines' "cathodic protection" system is tested at
defined monitoring stations (none of which are located at the
proposed crossing), and it can also be tested through a "close
interval survey" where a corrosion
technician walks along the
pipeline and takes a soil reading every four to ten feet to ensure
that the cathodic protection system is functioning properly.
Such
close interval testing could not be conducted on the twenty-six
foot stretch of the Pipelines that would be covered by the asphalt
crossing unless the technician first drilled through the asphalt.
24.
The trial record indicates that Columbia complies with
federal testing requirements by performing a close-interval test
on each side of road crossings, and if testing under a road becomes
necessary, a hole can be drilled through the asphalt.
Columbia
failed to demonstrate that such drilling procedure, in the unlikely
event that it becomes necessary, is time consuming or expensive,
with
Columbia's
expert
aclcnowledging
that
the
corrosion
technicians have the capability to test the soil under an asphalt
road by drilling any necessary holes.
25. The proposed twenty-six-foot-wide asphalt crossing would
have virtually no impact on the majority of Columbia's testing
procedures, as aerial surveillance, ground surveillance, cathodic
testing at defined stations, and "pig" testing could all proceed
unimpacted; moreover, the minimal impact to the
close interval
surveys" are just that, minimal.
26. Although Columbia presented some evidence regarding the
risks of delayed leak detection and/or gas ''migration" should a
leak
occur
under
the
proposed
road,
Columbia's
case-specific
evidence regarding these risks was both limited and uncompelling.
27. Despite the fact that the two cathodically protected
Pipelines have been in the ground for approximately 60-70 years,
there has never been a need for Columbia to access, repair, or
physically
inspect
Additionally,
the
Pipelines
on
every test that Columbia has
Grove's
Property.
performed on
this
section of the Pipelines over the past several years, including
the most recent "pig" surveys, revealed that the Pipelines are in
good condition and do not require any repairs (although the "pig"
data is approximately five years old).
28.
Kvasnicka
Based
on
("Mr.
the
testimony
Kvasnicka"),
if
of
an
Columbia's
expert,
"emergency"
Andrew
repair
was
necessary under the asphalt road proposed by Grove, it could take
Columbia several hours longer to secure the necessary equipment
and personnel than it would take to secure the same for excavation
in an open field.
Such delay is difficult to pinpoint as it would
depend on various factors, but it could be approximately four
hours.
That said, in over twenty years in the industry, and having
been involved in approximately sixty "digs" under asphalt roads,
8
Mr. Kvasnicka cannot recall a single
emergency" unscheduled dig
under an asphalt road, meaning that the equipment and personnel
have always been scheduled in advance.
29. Based on Mr. Kvasnicka's testimony, once the necessary
equipment and personnel are on site, the roadway proposed by Grove
would delay accessing the Pipelines by approximately four hours,
as additional excavation work would be necessary to remove the
asphalt roadway.^
30. Because the road crossing proposed by Grove will terminate
in
a
dead-end
that
does
not
intersect
with
any
other
roads,
Columbia will bear additional costs and delays caused by the need
to keep one lane of the proposed road passable during a repair
project in case emergency personnel and/or residents need to access
Grove's proposed Condominium development.®
2. Wheel Load Calculations
31. If a road is constructed over Columbia's Pipelines, there
is a risk to the integrity of the Pipelines based on the weight of
crossing
vehicular
traffic.
Such
risk
is
evaluated
through
conducting ''wheel-load" calculations.
^ For context, Columbia's ejqjert testified that a scheduled "pig-dig"
conducted to repair a known defect in an underground pipeline could take a
"couple of days," or could take "a week," depending on the nature of the
repair.
^ Columbia did not present evidence quantifying the additional cost, or the
additional delay, resulting from the absence of an alternative access road.
32. Mr. Kvasnicka performed wheel-load calculations in this
case using an industry-accepted software program, which conducts
a mathematical calculation based on the ''Spangler Analysis," named
for the engineer that developed the protocol for performing such
test.
Mr. Kvasnicka concluded, based on his calculations using
the industry-accepted program, that the crossing proposed by Grove
was not safe as to either of Columbia's Pipelines.
33. Grove's expert. Dr. Richard Roby (''Dr. Roby"), performed
wheel-load calculations using the same industry-accepted software
program, but he concluded that the proposed crossing was safe as
to both of Columbia's Pipelines.
34. While both experts used the same software/formula for
performing wheel-load calculations, they input different variables
into the equation, including different variables that reflect soil
compaction and soil weight.
35. Even after filing a federal lawsuit, Columbia never tested
the actual soil for compaction, soil type, or soil weight, but
rather, Mr. Kvasnicka: (1) used the variable for soil compaction
tied to the manner in which the Pipelines were actually installed
("open trench method"); (2) assumed, consistent with his training
for permanent road construction, that the soil type was "granular
materials
without
cohesion,"
the
type
most
favorable
to
the
developer (he makes an unfavorable assumption on this variable to
evaluate a proposed temporary road across a grassy lot); and (3)
10
assiamed a
^^worst-case scenario" for soil
weight (130 lbs/ft^)
justifying his decision to do so based on his training in the
industry and a desire to be conservative in the absence of data to
the
contrary.
consistent
with
guidelines
for
Such
latter
the "range"
the
selected
"worse-case"
of
soil
assumption
weights
most-favorable
in
soil
the
type
is
not
software
(90-100
lbs/ft^), but is arguably consistent with another statement within
such guidelines indicating that Spangler recommends using the
worst-case ass\amption for the friction co-efficient (soil type) in
order to reflect conservatism unless there is actual evidence that
a less conservative value is accurate.''
36.
Even after being named in a federal lawsuit and advancing
a counterclaim seeking a declaratory judgment intended to avoid
hundreds of thousands of dollars in requested mitigation measures,
Grove never tested the actual soil for compaction, soil type, or
soil weight, nor did Grove hire a soil expert.
Rather, Grove's
'
The width of the trench dug at the time the Pipelines were installed is
another variable that Columbia's expert input into the wheel-load formula
based on his training and experience.
He testified that because he was
obviously not present in the 1950s and 1960s when the Pipelines were
installed, he could not know this variable with certainty.
He further
stated that a four-foot wide trench is common in the pipeline industry
today, and that he has been trained to use that width in his calculations.
Although it arguably remains unclear whether "four feet" would be widely
accepted in the industry as an accurate estimate of historical installation
practices. Grove's expert advanced nothing to undermine the reasonableness
of such estimate. Rather, Dr. Roby merely speculated that the trench could
have been narrower, and his testimony on this issue at least suggested his
unfamiliarity with what this variable was meant to represent in the wheelload calculations. Because Grove's challenge to Mr. Kvasnicka's assumption
is speculative, the Court accepts his assumption as reasonable.
11
engineering expert,
whose primary expertise is in combustion
systems, fire protection engineering and safety analysis (both
before and after incidents), concluded: (1) that it was appropriate
to assume that the soil over and around the Pipelines was near
100% compaction due to the length of time it was presumably left
undisturbed, causing him to input a variable for soil compaction
into the software program (^^bored method") that is inconsistent
with the manner in which the Pipelines were actually installed;
(2) that the soil type was granular materials without cohesion,
the most favorable type of soil from the developer's perspective;®
and (3) that the soil weight was the ''midline" weight within the
typical range of weights associated with such best-case scenario
soil type (95 lbs/ft^).
37. To further clarify Grove's position on the first data
point, soil compaction. Dr. Roby essentially opined that although
it is undisputed that Columbia's Pipelines were actually installed
through
an
''open
trench
method,"
it
was
more
scientifically
accurate to select the "bored method" in the software program.
^ As previously noted, Columbia's expert similarly selected this "best-case
scenario" type of soil in his calculation, testifying that he always used
such ass\imption for evaluating permanent road crossings because it gives
the best results and mimics a typical road subbase. When pressed on crossexamination, Mr. Kvasnicka appeared to admit that such soil type was
consistent with his exposure to the soil in the same general area as Grove's
Property as he has worked on prior excavations within a mile of Grove's
proposed crossing.
Even assuming, in Grove's favor, that such latter
statement is accurate, the Court notes the obvious concern of relying on
soil data from "within a mile" of the proposed crossing rather than data
regarding the soil properties at the location of the proposed crossing.
12
Dr. Roby explained that this input variable is designed to reflect
soil compaction, and that the passage of many years since the
Pipelines were installed likely caused the soil to compact to a
degree that approached that of undisturbed soil, as would exist if
the
"bored
method"
was
used.
Dr.
Roby
offered
common
sense
examples of soil settling, such as after a fresh grave is dug in
a cemetery, or after a new house is constructed, but he did not
appear to rely on any specialized soil knowledge, pipeline industry
knowledge,
or
construction
industry
knowledge.
Such
lack
of
expertise calls into question the reliability of his challenge to
the industry-accepted software program, particularly because Dr.
Roby never inspected the condition of the location at the proposed
crossing.
38. Neither Dr. Roby's testimony, nor any other evidence
advanced by Grove, suggested that any soil scientists, experts in
the
pipeline
industry,
or
experts
in
the
road
construction
industry, viewed the industry-accepted software program as flawed
whenever it is used to calculate wheel-loads for pipelines that
were installed several decades ago.
introduce
evidence
suggesting
that
Grove similarly failed to
any industry practitioners
actually select a "bored" method while performing calculations
when it is known that pipelines were installed through an "open
trench" method.
Although Dr. Roby testified Spangler recognized
that the open trench method becomes more and more conservative as
13
time passes due to compaction, Spangler nevertheless instructed
that one should use the correct input, but understand that doing
so is conservative.
testimony
that
Grove's expert further acknowledged in his
conservatism
was
generally
necessary
to
the
formula's viability because safety concerns dictate that a close
call should err on the side of ''failure" rather than returning a
"safe to cross" result when it might not be safe to cross.
39.
Dr.
Roby's
testimony
on
the
wheel-load
analysis,
including the soil compaction and other input variables, is best
summarized as seeking to inject doubt into the validity of the
software
model
itself,
as
he
highlighted
several
additional
variables (such as trench width and population density) that could
be slightly modified in order to yield a "passing" score.
the
Court
acknowledges
Dr.
Roby's
point,
he
did
While
little,
if
anything, to demonstrate that Mr. Kvasnicka used the wrong variable
for population density, trench width, or any of the other inputs,
with the arguable exception of soil weight.
40. The most questionable variable input into the formula by
Mr. Kvasnicka is the soil weight, as he assumed the soil weight
for "saturated clay" (the heaviest type of soil) rather than the
soil
weight generally associated with
the "granular
materials
without cohesion" soil type that he has been trained to input for
all permanent road crossings.
Assuming, without knowing, that the
soil at the crossing site is "granular materials," if all other
14
input variables are left unchanged, but the soil weight is changed
from the ultra-conservative amount used by Mr. Kvasnicka (130
lbs/ft^) to the highest amount within the ''range" stated in the
software guidelines for "granular materials," (100 lbs/ft^), Dr.
Roby's calculations purportedly result in a "safe to cross" score
for one Pipeline, and a "borderline" result for the other.
As Dr.
Roby did not explain what he meant by "borderline," when such word
is taken in the context of his testimony, it is interpreted to
mean a score that does not "pass," but is close to passing.®
41.
Mr.
Kvasnicka
permanent
road
utilizing
the
has
crossings,
evaluated
yet
industry-accepted
his
over
twenty
wheel-load
software
program
proposed
calculations
yielded
an
"unsafe to cross" conclusion for every single crossing that he
evaluated.
He has, however, had multiple temporary road crossings
yield a "safe to cross" result.
42. Mr. Kvasnicka, a credible and forthright expert witness
with an unwavering focus on safety, opined that even if it was
'
Dr. Roby separately testified that adding a few extra inches of "fill"
material over the top of the Pipelines is a viable and cost-effective option
that would improve the wheel-load results.
Dr. Roby asserted that such
procedure is a "common industry practice," but he is not an expert in the
industry, and his conclusion appears to be based solely on a "Canadian
study" that was not presented to Columbia's engineers prior to litigation.
Moreover: (1) Grove never submitted a proposal to Columbia seeking to build
its crossing using additional fill material such that Columbia's engineering
department had an opportunity to evaluate the propriety of such proposal in
these circumstances; and (2) Dr. Roby never used the wheel-load formula to
determine if both Pipelines would pass if extra fill was added and the soil
weight was changed from (130 lbs/ft^) to (ICQ lbs/ft^).
15
proven that the software input variables should be revised in this
case, and even if such revisions resulted in a ''safe to cross"
result, in light of the age of the Pipelines at issue, and the
fact that he believes in the accuracy of his initial calculations,
he would likely still conclude that a visual inspection of the
Pipelines is needed to ensure a safe crossing.^®
43.
If
constructed
the
Pipelines
using
modern
were
recently
manufacturing
installed,
techniques,
had
and
been
the
industry-accepted formula returned a "safe to cross" result, Mr.
Kvasnicka
would
conclude
that
there
was
no
need
for
a
visual
inspection prior to approving a proposed asphalt road crossing.
44. Notwithstanding the fact that Columbia's Pipelines are
roughly 60-70 years old and in a "high-consequence" area adjacent
to a school, Columbia has no intention to visually inspect, repair,
or replace the Pipelines unless a road crossing is constructed.
Stated differently, Columbia fully accepts and trusts its various
forms of testing data for all federal regulatory and maintenance
purposes, yet its expert is apparently unwilling to trust such
data when it comes to evaluating a proposed road crossing due to
the
age
of
the
Pipelines
and
the
age
of
the
"pig"
data.
Although not a "factual finding," the Court notes in advance of its legal
analysis that it acJmowledges and respects Mr. Kvasnicka's conservatism;
however, the Court has strong reservations about Columbia's apparent
viewpoint that it can demand that Grove pay for expensive mitigation measures
if the need for such measures is predicated solely on a non-definable "hunch"
that something could be wrong with the Pipelines due to their age.
16
Accordingly, even though the Industry-accepted wheel-load formula
already has a 38% margin of error built into it based on the
population density of the area in question, Mr. Kvasnicka would
likely err on the side of caution regardless of the result of the
wheel-load analysis
and conclude that a visual inspection is
required before Grove's crossing will be allowed.
II. Conclusions of Law
A. Virginia Law on Easements
Virginia law
applies
to
the instant diversity
case,
and
because the easement at issue was ''granted by deed, the ordinary
rule which governs in the construction of other writings prevails,
namely, that the rights of the parties must be ascertained from
the words of the deed, and the extent of the easement cannot be
determined from any other source."
541, 178 S.E.2d 495, 496 (1971).
Gordon v. Hoy, 211 Va. 539,
Only in circumstances where the
terms of the written deed are found to be ambiguous should the
Court seek to "ascertain the intention of the parties" through
On the opposite end of the spectrum from Mr. Kvasnicka's conservatism is
Dr. Roby's apparent lack of conservatism.
Notably, Dr. Roby took the
position at trial that a wheel-load calculation must only be "close" to
passing, meaning that even in a densely populated area that requires a score
of a 62 or lower to yield a passing score. Dr. Roby thought a score of 63.4
was sufficient from an engineering standpoint. Grove failed, however, to
introduce any evidence from an expert in the gas pipeline industry that
would suggest that close is "good enough," particularly when crossing two
gas transmission pipelines that are over 50 years old and are located in a
"high consequence area" adjacent to an elementary school.
Dr. Roby's
arguable separation from industry-specific concerns is further illustrated
by the fact that he had not reviewed the federal regulations governing gas
pipelines for at least five years prior to being retained in this case.
17
considering the language of the deed in
light of the circumstances
surrounding the parties and the land at the time the deed was
executed."
Id.; see Columbia Gas Transmission, LLC v. Vlahos, 94
F. Supp. 3d 728, 738 (E.D. Va. 2015).
Turning to the relative rights of Columbia and Grove as the
respective owners of the dominant and servient estates, the Supreme
Court of Virginia has explained as follows:
Under well-settled principles, a conveyance of an
easement that is non-exclusive does not strip the
servient landowner of its right to all use of the land.
Walton V. Capital Land, Inc., 252 Va. 324, 326, 477
S.E.2d 499, 501 (1996). The servient landowner retains
the right to use its property in any manner that does
not unreasonably interfere with the lawful dominant use.
Id.
The servient landowner's right to reasonably use
the land includes the right to grant to others additional
easements to use the same land so long as the additional
uses are not unreasonably burdensome or inconsistent
with the existing dominant uses of the easement.
Preshlock v. Brenner, 234 Va. 407, 410, 362 S.E.2d 696,
698 (1987).
The party alleging such an unreasonably burdensome or
inconsistent use has the burden of proving this
allegation.
Hayes v. Aquia Marina, Inc., 243 Va. 255,
259, 414 S.E.2d 820, 822 (1992).
Shenandoah Acres, Inc. v. P.M. Conner, Inc., 256 Va. 337, 342, 505
S.E.2d 369, 371 (1998) (emphasis added).
Here, although Grove has expressly retained the full use and
enjoyment of the servient estate. Grove's rights remain "subject
to" Columbia's right to maintain and operate its high-pressure gas
transmission Pipelines within the easement.
See Walton, 252 Va.
at 326-27, 477 S.E.2d at 501 ("[T]he servient landowner retains
18
the right to use the land in ways not inconsistent with the uses
granted in the easement.") (emphasis added) (citations omitted).
Columbia, as owner of the dominant estate, has the "privilege to
use the land [owned by Grove] in a particular manner and for a
particular purpose," and such right "creates a burden on the
servient tract and requires that [Grove] refrain from interfering
with the privilege conferred for the benefit of [Columbia]." Brown
V. Haley, 233 Va. 210, 216, 355 S.E.2d 563, 567-68 (1987).
said,
consistent
with
easement
treatises,
Virginia
case
That
law
recognizes that when the dominant estate holder's easement rights
are not "specifically defined," the law will imply those rights
"reasonably necessary for the enjoyment of the easement," but such
implied rights are limited to those that will "'burden the servient
estate as little as possible.'"
Scott v. Karmy, 52 Va. Cir. 118,
124-25 (2000) (quoting 25 Am. Jur. 2d Easements and Licenses,
§ 83);^2 see Columbia Gas Transmission, LLC v. Ott, 984 F. Supp.
2d 508, 519 (E.D, Va. 2013) (finding that, based on Scott and other
authorities, Virginia law requires that the servient estate be
burdened as little as possible); City of Lynchburg v. Smith, 166
Va. 364, 369, 186 S.E. 51, 53 (1936) (citing case law for the
Although it appears that the quoted language from American Jurisprudence
does not, at least at this time, appear in the cited section, it can be
found in other provisions. See 81 Am. Jur. Proof of Facts 3d 199 § 11 (Nov.
2018 update); 9 Am. Jur. Pi. & Pr. Forms Easements and Licenses § 54 (Sept.
2018 update).
19
proposition that although an easement holder must be allowed to
enjoy ''all the advantages contemplated by the grant,'' he must "use
his own privileges as not to do any unnecessary injury to the
grantee") (citation omitted); 28 A.L.R.2d 626 (explaining that the
owner of a pipeline easement appears to have the authority to use
the easement "in any way that is reasonable and proper to the
enjoyment of the easement acquired, imposing in this respect as
slight a burden as possible on the servient tenement"); see also
Wessynton Homes Ass'n, Inc, v. Burke, 79 Va. Cir. 365, 369 (2009)
("Unless authorized by the terms of the servitude, the [easement]
holder is not entitled to cause unreasonable damage to the servient
estate or interfere unreasonably with its enjoyment." (quoting
Restatement (Third) of Property - Servitudes § 4.10(c) (Oct. 2018
update))).
Columbia maintains publicly available written policies and
guidelines
that
are
intended
to
relay
Columbia's
rules
and
procedures regarding various potential encroachments, including
road crossings and vegetation, and such policies generally allow
perpendicular road crossings constructed of asphalt.
Tr. Exs.
It is undisputed that Columbia has allowed multiple asphalt roads to cross
its Pipelines within a mile of Grove's property, but that it did so after
the property owners agreed to pay for the mitigation measures that Columbia
requests in this case. Although the existence of other crossings does not
preclude
Columbia
from
enjoining
the
crossing
proposed
by
Grove,
particularly because Grove refuses to finance the requested mitigation
measures, the existence of multiple asphalt crossings in close proximity to
Grove's Property lends context when considering whether the proposed asphalt
crossing is "inconsistent with the existing dominant uses of the easement."
20
9-10. However, Columbia's written policies note that all crossings
must
be
evaluated
and
approved
by
Columbia
in
advance
of
construction, that mitigation measures may be necessary, and that
an entity constructing a road crossing ''must pay for any measures
required by [Columbia] to inspect and protect its pipeline(s)."
Trial Ex. 9, at 2.
Such written procedures also require Columbia's
approval before the depth of cover over its pipelines can be
modified.
Id.
Such policies do not state, or even suggest, that
Columbia routinely requires hundreds of thousands of dollars in
mitigation measures prior to approving a single two-lane asphalt
road crossing.
Neither
this
Court,
nor
Grove,
questions
the
fact
that
Columbia has both the right and the duty to monitor construction
activities, excavation activities, and other potentially dangerous
activities
within
its
pipeline
easements.
It
is
similarly
unremarkable that, absent an express statement to the contrary in
a
written
easement,
Columbia
has
the
legal
right
activities that pose a material risk to its Pipelines.
to
enjoin
Moreover,
when considering the concept of "materiality," it should be noted
that the Pipelines at issue are high-pressure gas transmission
lines,
which
generally
are
distinguishable from
transmit smaller
quantities
distribution lines
of
gas
Shenandoah Acres, 256 Va. at 342, 505 S.E.2d at 371.
21
at a much
that
lower
pressure.
Even in the context of transmission lines, however, the
Court agrees with Grove's position
that the potential for a
pipeline incident to cause catastrophic harm is alone insufficient
to render the appropriate panacea an injunction preventing all
development/improvements irrespective of the scientific evidence
documenting the risk, or lack thereof, to the Pipelines.
Accordingly,
in
a
word,
this
case
comes
down
to
''reasonableness," as the undisputed facts demonstrate that Grove's
proposed asphalt road creates at least some additional burden on
Columbia, as it will have a very minor impact on Columbia's routine
testing procedures, and will increase the time/cost to access the
Pipelines in the unlikely event that the exceedingly small stretch
of Pipelines to be crossed by the proposed road (twenty-six feet)
needs to be physically accessed by Columbia.
See 28 A.L.R.2d 626
("One of the outstanding incidents to full enjoyment of a pipeline
easement is
that it be accessible for maintenance and repair.
Without such right the easement would eventually become useless,
since leaks, breaks, and other defects would cause loss of the
material transported."); 61 Am. Jur. 2d Pipelines § 39 (Nov. 2018
update)
("The
erection
of
substantial
structures
or
other
obstructions on or over a pipeline right-of-way constitutes an
unwarranted interference with the rights of the dominant owner,
who may require the removal or enjoin the erection or maintenance
of such obstructions. Mere inconvenience to the pipeline owner and
22
his or her right of access for maintenance and repair is not of
itself sufficient to entitle the pipeline owner to the removal of
a permanent obstruction, such as a building, over the right-ofway.") (emphasis added); Jon W. Bruce & James W. Ely, Jr., The Law
of
Easements
&
Licenses
in
Land
§
8:21
(Sept.
2018
update)
(''Whether a particular activity by the servient owner constitutes
an unreasonable interference is a question of fact, and uniform
rules are difficult to formulate.").
B. Breadth of the Case-Specific Easement
A survey of relevant caselaw reveals that written pipeline
easements may expressly reference the servient landowner's right
to
maintain
expressly
roads
forbid
or
other
listed
structures, or trees.
obstructions,
obstructions,
or
in
such
contrast,
as
may
buildings,
Compare N. Utilities, Inc. v. City of S.
Portland, 536 A.2d 1116, 1117 n.l (Me. 1988) (allowing the grantor
to "build cross fences, to maintain and use roads, driveways,
sewers, drains, waterlines, gas lines,
telephone and
telegraph
lines and electric light and power lines across said easement,
subject, however, to the conditions that . . . rights reserved to
the Grantor shall not be used or exercised in any manner which
will interfere with the rights, privileges and authority herein
granted to the Grantee"), with Ott, 984 F. Supp. 2d at 513 (quoting
from a written pipeline easement executed in 1950 indicating that
"no buildings or structures of any nature be erected within" the
23
easement), and Mid-Am. Pipeline Co. v. Wietharn, 246 Kan. 238,
239, 787 P.2d 716, 718 (1990) (discussing an easement granting the
pipeline company the express authority to ''keep clear all trees,
undergrowth and other obstructions from the . . . granted right of
way" with the landowner further agreeing
"not to build, construct
or create . . . any buildings or other structures on the . . .
right of way that will interfere with the normal operation and
maintenance of the said line or lines").
However,
here,
as
appears
to
commonly
be
the
case,
the
language of the easement, while clear and unambiguous, does not
expressly address above-ground structures, fences, or crossings,
thus
requiring
the
Court
to
determine
whether
the
disputed
encroachment (a two lane asphalt road) falls within Grove's right
as landowner to "fully use and enjoy the premises," or whether
Grove should be legally barred from constructing the proposed road
crossing because it unreasonably interferes with Columbia's right
to
"maintain
and
operate"
its
underground
Pipelines.
Such
determination is case-specific, fact intensive, and as previously
suggested
herein,
turns
on
the
concepts
of "materiality" and
"reasonableness."
Should
the
Court
find
that
the
proposed
crossing
will
materially interfere with Columbia's easement rights such that the
road cannot
be
constructed
without Columbia's
Pipelines
being
relocated, buried deeper, encased, or otherwise protected through
24
mitigation
measures
to
avoid
damage
from
vehicular
traffic,
numerous federal and state authorities establish that the cost of
the required mitigation measures must be borne by Grove.
See
Panhandle E. Pipe Line Co. v. State Highway Common of Kansas, 294
U.S. 613, 616-19 (1935) (holding that a state agency facilitating
highway construction could not constitutionally order a utility
company
to
"lowerings"
make
or
changes
to
''casements,"
its
natural
without
gas
providing
lines,
such
as
compensation);
Buckeye Pipe Line Co. v. Keating, 229 F.2d 795, 796-98 (7th Cir.
1956)
(affirming
the
district
court's
order
enjoining
the
defendant developers from crossing a one-foot deep oil pipeline
with a paved road (or allowing traffic to pass over the pipeline
on an unpaved road) unless and until the defendants "incased and
lowered" the pipe, or agreed to pay $2,900 to cover such costs, in
a case where the record demonstrated that "injury to the pipe would
be a probable result of paving and using the streets while the
pipe is unprotected"); Tenneco Inc. v. May, 377 F. Supp. 941, 942-
44 (E.D. Ky. 1974), aff'd, 512 F.2d 1380 (6th Cir. 1975) (holding
that the "road construction and concomitant necessity of encasing
the pipeline constituted an unreasonable interference with the
dominant estate," thus requiring the servient estate holder to
bear the costs of encasement in an action where live testimony
"left scant doubt as to the necessity of securing the pipeline
against the increased hazards attendant to highway traffic");
25
Minard Run Oil Co. v. Pennzoil Co., 419 Pa. 334, 335-36, 214 A.2d
234, 235 (1965) (holding, in a case where ^^the nature of the
terrain" required a pipeline to be lowered before a new road
crossing was constructed, that it was ''the plaintiff who desires
to alter the status quo for its benefits (even though, by deepening
the bed of the defendants' pipeline it will be less subject to
damage)" and it therefore must be "the plaintiff's obligation to
pay for the achievement of its desire")
such legal
authority,
Grove does not dispute
but instead asserts
that this
case is
factually distinguishable—that is. Grove asserts that there is no
reliable
scientific
evidence
establishing
that
expensive
mitigation procedures are necessary in order for Grove to construct
a safe crossing.
C. Case-specific Interference
1. General Allegations & Applicable Law
Columbia has the burden to demonstrate that Grove's planned
activities will "unreasonably" interfere with Columbia's use and
enjoyment of its easement.
S.E.2d
at
demonstrate
371.
Shenandoah Acres, 256 Va. at 342, 505
Columbia
unreasonable
advances
two
interference:
primary
(1)
the
arguments
proposed
to
road
Historic case law frequently references "encasing" a pipeline for added
protection from vehicular weight, a practice that involves installing a
second larger pipe around the existing pipeline. However, Columbia's expert
ejqjlained at trial that such mitigation procedure often caused corrosion
that would not otherwise occur, and that encasing is therefore no longer a
favored practice.
26
crossing
unreasonably
increases
the
risk
of
damage
to
the
Pipelines, thus enhancing the danger to the public, due to the
weight of crossing vehicular traffic; and (2) the asphalt road, by
its
nature,
creates
a
material
encumbrance
that Columbia can
prohibit as of right (although it does not seek to do so) because
such
road,
if
constructed,
will
adversely
impact
Columbia's
testing protocol and will delay Columbia's ability to physically
access its Pipelines by several hours.
The critical question in this case is not whether an asphalt
crossing, in the abstract, unreasonably interferes with Columbia's
safe operation, testing, maintenance, and repair activities, but
rather, whether this specific road, in this specific place, built
in the specific manner proposed by Grove, would constitute an
''unreasonable"
interference.
See
McCarthy
Holdings
LLC
v.
Burgher, 282 Va. 267, 273, 716 S.E.2d 461, 464 (2011) ("Ordinarily,
when a tract of land is subjected to an easement, the servient
owner may make any use of the land that does not unreasonably
interfere with the use and enjoyment of the easement." (quoting
Preshlock, 234 Va. at 410, 362 S.E.2d at 698)).
such
question
necessarily
turns
on
the
The answer to
materiality
of
the
obstruction, to include consideration of whether it is temporary
Columbia divides its argument on this latter issue into two discrete
arguments (testing interference and access interference), but this Court
elects to treat such concepts collectively.
27
or permanent, the degree to which it burdens Columbia's rights, as
well as the cost and time to remove such an obstruction should the
need arise. See Restatement (Third) of Property - Servitudes § 4.9
(discussing the importance of the ''character of the improvement"
and noting that "the more difficult its removal is likely to be"
the greater the likelihood that it constitutes an "unreasonable
interference").
whether Columbia
The Court therefore does not endeavor to resolve
has
the right to
categorically prohibit the
construction of all road crossings, considering instead whether
the specific crossing proposed by Grove, constructed without the
mitigation
measures
sought
by
Columbia,
would
constitute
an
unreasonable interference with Col\imbia's right to operate and
maintain its Pipelines.
In addressing such issue, it is tempting for this Court, as
factfinder, to place substantial emphasis on the existence of other
asphalt crossings in the immediate area of the proposed crossing
and/or on modern pipeline companies' obvious ability to test,
maintain and operate their pipelines even when they cross under
concrete multi-lane highways, or rivers, or shipyards; however,
the
Court's
focus
must
remain
narrow.
Here,
the
predecessor
landowner and predecessor pipeline company divided the "bundle of
sticks" attendant to land ownership regarding this specific parcel
of land.
A price was set and paid, and Columbia obtained the legal
right to access, monitor, test, and maintain its pipeline(s) on
28
this specific tract of land.
therefore
be
based
on
the
The critical determination must
case-specific
bargained-for
rights
regarding this specific parcel, and turns on the resolution of the
following
two
questions:
(1)
Has
Columbia
sufficiently
demonstrated that the case-specific data establishes that Grove's
proposed
crossing,
introduces
constructed
without
a sufficient risk of
harm
to
mitigation
the
procedures,
integrity of
the
Pipelines such that it constitutes an unreasonable interference,
either when vehicular weight is considered alone, or considered in
conjunction with the evidence demonstrating that the road will
delay Columbia's ability to access its Pipelines?; and (2) If
vehicular weight does not present a safety concern, does Columbia
nevertheless have the authority to prohibit the construction of
the proposed two-lane asphalt crossing predicated solely on the
impact such crossing will have on Columbia's testing procedures
and/or the increase in time or cost to repair the Pipelines at the
location of the crossing?
Because the Court finds in favor of
Columbia on the first question, the Court does not squarely resolve
the second question.
2. Risk to Pipeline Integrity from Traffic
The difficult pipeline ''safety" question, that could not be
resolved without the benefit of live testimony from the parties'
respective
experts,
is
whether
the
case-specific
scientific
evidence supports Columbia's contention that mitigation measures
29
designed to protect the Pipelines are needed before a safe road
crossing can be constructed.
The Court's factual findings, set
forth in detail above, reflect the Court's concerns regarding the
reliability of portions of the expert testimony advanced by both
parties in this case. However, the Court finds that Mr. Kvasnicka,
Columbia's expert who has worked in the pipeline industry for many
years, provided the more compelling testimony.
Grove's expert.
Dr. Roby, while both a qualified engineer and credible witness, is
not a soil expert, expert in road construction, or expert that
specializes in the pipeline industry.^®
a. Pipeline Installation Method
One of the key disputes between the experts was whether the
construction type" variable in the wheel-load formula, a variable
relevant
to
the
"bedding
constants"
of
Columbia's
Pipelines, should be input as "open trench" or as "bored."
buried
It is
undisputed that the Pipelines were actually installed through an
"open trench method," but Dr. Roby advocated inputting the "bored
method" into the formula to reflect the presumed actual condition
of the soil after many years of settling.
experience investigating fires
Although Dr. Roby has
and damage
caused by pipeline
At trial, the Court overruled Columbia's objection to Dr. Roby being
accepted as an expert in "pipeline safety requirements," finding that he
had sufficient training and experience to opine on such subject. However,
the Court expressly noted that "the weight" that the Court would ultimately
give to Dr. Roby's testimony on such subject would be based on the depth of
his knowledge and experience on such matters.
30
explosions/failures/
he
does
not
appear
to
have
scientific
experience regarding soil properties, and instead appeared to rely
largely on the "common sense" concept that soil settles/compacts
over time.
Although this Court does not dispute that common
experience renders soil "settling" a familiar concept, Dr. Roby's
testimony was insufficient to convince the Court that the soil at
the proposed crossing location "settled" to such a degree that the
more accurate input variable was
the variable reflecting
installation type that was not used in this case.
the
Stated a little
differently, even if Dr. Roby is in fact correct, absent evidence
from an individual more familiar with the pipeline industry, the
wheel-load software program, soil sciences, or even the broader
underground
utility
industry,
the
Court
disregard the industry-accepted formula.
is
not
prepared
to
Notably, the purported
"flaw" in such formula is not case-specific, but would presumably
exist every time it was applied to a pipeline that had been buried
for many years.
Again, while this Court does not discount the
possibility that such analytical "flaw" could exist. Grove's trial
evidence is insufficient to support such finding at this time.^"^
This Court holds Columbia
to its
burden
to demonstrate unreasonable
interference, but to the extent Grove seeks to undercut Columbia's
scientific calculations based on a known data point, or a facially reasonable
assumption applied by Columbia's expert that is supported by credible
testimony, it is incumbent on Grove to demonstrate the flaws in Columbia's
evidence.
31
The Court separately notes that Dr. Roby's soil compaction
testimony also relied on the assumption that the soil at the
location of the crossing had been undisturbed for several decades/
which was supported, at least generally, by the testimony of the
Property owner.
Dr. Roby, however, did not visit the Property to
inspect the current state of the soil at the location of the
proposed crossing (as opposed to the Property generally), did not
perform any soil compaction tests, and did not rely on any soil
test data performed by any other expert or qualified individual.
Had
Grove
conducted
such
testing
and
used
the
actual
soil
conditions to undercut the reliability of Columbia's wheel-load
calculations,
this
Court's
conclusion
regarding
''unreasonable
interference" may have been starkly different.
b. Soil Type, Soil Weight, Trench Width
Dr. Roby's wheel-load analysis adopts the assumption made by
Mr. Kvasnicka that was favorable to Grove (soil type) but sought
to attack the assumptions that were unfavorable to Grove (soil
weight, trench width).
In doing so. Dr. Roby did not rely on any
factual information regarding the actual soil conditions or the
width of
the trench used to install Columbia's Pipelines, but
rather, he appeared to highlight reasons why one should assume
that the actual weight was less, and why one could assume that the
actual trench width, dug many decades ago, might have been narrower
32
than four feet.^®
Similarly, although not included in Grove's
plans documenting the proposed road crossing. Dr. Roby discussed
the favorable impact of adding additional fill material on top of
the Pipelines, something he characterized as ''standard practice"
in the industry.
However, as discussed herein. Dr. Roby is not
truly an industry practitioner, and his conclusion appears to rely
solely on recounting
pipeline crossings.
the
conclusions
of
a Canadian study on
Even if such study had been admitted into
evidence and deemed reliable, it both acknowledges the benefits of
adding additional fill to reduce the impact of vehicle weight on
the pipelines, and the added risk of increasing stress on buried
pipelines due to the weight from the added fill.
Further assuming
that the benefits outweigh the drawbacks. Grove never proposed
such option to Columbia as part of its crossing plan, and thus,
Columbia's engineers never evaluated the possibility of adding
fill as part of the engineering review of the proposed crossing.
Forced to make a call on this close issue, the Court finds
that, after weighing the case-specific evidence, Mr. Kvasnicka's
As to trench width, Dr. Roby testified about a personal experience when
he witnessed a far narrower trench dug at his golf club; however, his
testimony did nothing to suggest that transmission pipeline installation
trenches dug in the 1950s and 1960s were in fact narrower than the fourfoot standard industry width assumed by Mr. Kvasnicka. Rather, Dr. Roby's
testimony appears to be best characterized as highlighting the degree to
which such variable would impact the wheel-load calculations
the trench
had been narrower. The fact that small changes in various inputs into the
formula can have a big impact on the program output is not lost on the
Court; however, such fact is insufficient to call into question the
reasonableness of the assumptions relied on by Columbia's expert.
33
testimony regarding the various wheel-load input variables was
more compelling
than Dr.
Roby's
testimony.
Mr.
Kvasnicka's
calculation relied on the soil type most favorable to Grove, yet
such favorable assumption was counterbalanced by an extremely
conservative assumption regarding soil weight.
Mr. Kvasnicka
explained that he was taught by his mentor that, in the absence of
having real data from soil scientists, it was appropriate to assume
a soil weight of 130 lbs/ft^ in order to be conservative.
Although
Grove's expert proposed a different assumption, his field of
expertise
is
not
construction.
sciences,
Accordingly,
successfully
predicated
soil
demonstrated
on
a
very
pipeline
although
that
Mr.
conservative
safety,
Grove's
trial
Kvasnicka's
assumption
or
road
evidence
analysis
regarding
was
soil
weight. Grove failed to convince the Court, in the context of a
proposed
road
crossing
over
two
separate
decades'
old
high-
pressure gas transmission lines located in a ''high consequence
area," that in the absence of actual soil data, Mr. Kvasnicka's
conservative assumption was improper {particularly when made in
conjunction
with
a
favorable
assumption
for
soil
type).
Alternatively, even if the Court assumes that Mr. Kvasnicka's soil
weight assumption of 130 lbs/ft^ is unacceptably conservative, and
that the highest allowable conservative assumption was instead ICQ
34
lbs/ft^, Dr. Roby's testimony was that one of Columbia's Pipelines
still would not have resulted in a ''safe to cross" result.
In balancing the evidence regarding the experts' disputed
assumptions, the Court acknowledges the fact that Mr. Kvasnicka
has previously concluded that each one of the approximately twenty
proposed permanent crossings that he has evaluated was deemed
"unsafe to cross" without mitigation measures—a fact that causes
pause regarding his approach.
pause
does
not
undermine
However, such reasonable basis for
the
validity
of
Mr.
Kvasnicka's
assumptions absent evidence suggesting: (1) that one or more of
such prior crossings was in fact "safe to cross" without mitigation
procedures; or (2) that Mr. Kvasnicka's input variables were more
conservative than is accepted in the industry.20
Notably, Mr.
Because it is not even "known" that the proposed crossing location is in
fact such favorable soil type (rather than a less favorable type, such as
"topsoil" or "clay"), it would be eminently reasonable, based on the trial
evidence presented in this case, to use a "conservative" estimate of 100
lbs/ft^ in the absence of actual soil data because such figure is consistent
with the estimated "range" of soil weights in the software guidelines (90100 lbs/ft^) for such favorable soil type.
Engaging in speculation about unknown prior crossings is dangerous,
because such prior crossings could have had far shallower pipelines, or any
one of a number of other factors that dictated the result of the wheel-load
calculations.
The Court similarly places limited weight on Dr. Roby's
contention that a "Canadian study" documenting rare instances of vehicular
weight damaging buried pipelines empirically establishes that roads do not
pose a significant risk to underground pipelines. Notably, it is not only
possible, but probable, that road crossings rarely result in damage to
buried gas transmission pipelines because industry practitioners like Mr.
Kvasnicka work to ensure that permanent road crossings are not constructed:
(1) over damaged or weakened pipelines; and/or (2) in a manner that risks
a catastrophic explosion or other danger to the community.
Stated
differently, it is relatively unremarkable to suggest that vehicular weight
rarely causes gas pipeline failure in an industry highly regulated by the
federal government in which every effort is made to ensure that vehicular
35
Kvasnicka relied on his ''training and experience" in the relevant
field, which includes experience at a pipeline regulatory agency,
and he freely admitted that, based on the risks involved, he errs
on the side of conservatism.
Without more compelling contrary
evidence from an expert in the relevant field(s), this Court is
not convinced that Mr. Kvasnicka's conservative assumptions were
\mwarranted, inaccurate, and/or unduly conservative.
In ruling in Columbia's favor on this issue, the Court notes
that Mr. Kvasnicka appropriately considered, as one data point,
the fact that the Pipelines in question have not been physically
inspected in approximately 60
to 70
years,
and
that although
Columbia's testing measures (including "pig" data) are accepted as
reliable in the industry, they do not eliminate as a variable the
possibility that the Pipelines are in a degraded state (meaning
that
they
may
be
more
susceptible
than
a
newly
manufactured
pipeline would be to the danger from vehicular weight) particularly
when the most recent "pig" data is approximately five years old.
That said, had the trial evidence established that the Pipelines
were "safe to cross" based on the actual soil conditions and/or
proof of appropriate assumptions, all other things being equal,
the Court would not likely have accepted Mr. Kvasnicka's position
weight does not cause pipeline failure.
36
that mitigation measures costing hundreds of thousands of dollars
are necessary.
Having largely accepted Columbia's evidence regarding the
added risk of vehicular weight, the Court must consider whether
such added risk constitutes an
unreasonable interference."
In
addressing such question, the Court need not compartmentalize the
alleged impacts from the proposed crossing, which most notably
include the increased risk of damage due to vehicular weight and
the delay and cost involved in excavating the proposed *^dead-end"
asphalt road.
To the contrary, the impacts proven by Columbia
will collectively result from Grove's proposed crossing, and it is
therefore appropriate to consider these matters collectively in
determining whether Columbia has demonstrated that the proposed
crossing, constructed without excavation and the installation of
flowable fill to protect the Pipelines from vehicular weight, will
create a material encroachment that unreasonably interferes with
Columbia's easement rights.
Considering the wheel-load risk,
combined with the unrefuted evidence establishing that the asphalt
road will cause both an added delay, and added expense, to any
repairs {with such delay and expense exacerbated by the fact that
the dead-end crossing is the only manner of ingress/egress to the
proposed development),
the Court concludes
demonstrated
proposed
that
interference."
the
crossing
is
that Columbia has
an
^'unreasonable
Critically, Grove's current crossing plan not only
37
asks Columbia to shoulder an unreasonable risk to the integrity of
its Pipelines from vehicular weight, but seeks to place Columbia
in
a
position
that
delays
Columbia's
Pipelines should future damage occur.
ability
to
access
its
Such delay could include a
delay of several hours to secure necessary equipment in the rare
event of an emergency dig, and would include a delay (also measured
in hours) caused by the need to remove the asphalt road and a delay
caused by the absence of any alternative access routes.
Consistent
''encasement"
with
was
prior
cases
deemed necessary,
where
pipeline
the
resolution
lowering
of
or
disputed
facts at trial reveals that mitigation measures are necessary in
this
case.
measures,
Because
and
irreparable
Grove
because
harm
to
the
refused
to
crossing,
Columbia's
right
finance
as
such
proposed,
to
safely
mitigation
would
cause
maintain
its
Pipelines, the Court grants Columbia's request for an injunction
precluding Grove from constructing a road crossing without first
paying for, at a minimum, excavation and installation of flowable
fill
in
order
to
mitigate
and/or
eliminate
the
risk
to
the
Pipelines due to the increased burden of vehicular weight.21
The Court does not separately address the propriety of Columbia's related
demand that Grove also pay for the "stripping" of the coating from the
excavated Pipelines (and subsequent recoating) in order to permit a visual
inspection of the Pipelines' integrity. Although the age of the Pipelines
appears to be a relevant consideration in determining the likelihood that
vehicular traffic may pose a danger to the integrity of such Pipelines, it
remains unclear from the record before the Court whether Grove should be
financially responsible for Columbia's desire to perform a visual inspection
of
its own decades'
old
transmission lines in
38
a
case where
every non-
3. Comment on Testing/Repairs
Because this Court finds that Columbia has carried its burden
to
demonstrate
that
the
case-specific
proposed
crossing
constitutes an "unreasonable" interference when both wheel-loads
and access delays are considered in tandem, the Court need not
squarely
address
the
parties'
dispute
regarding
whether
the
asphalt crossing (irrespective of wheel-load calculations) itself
constitutes
an
unreasonable
interference.
While
this
Court's
comments on such issue are therefore dicta, they are presented for
the purpose of
transparency in light of
the fact
that
these
specific parties may continue to dispute such issue in further
negotiations, and because there appears to be limited precedent
addressing the "reasonableness" of access delays caused by asphalt
road crossings.22
invasive objective test that Colmnbia has performed has revealed that the
Pipelines are in good condition (or at a minimum, were in good condition
five years ago when they were last "pigged"). Stated differently, to the
extent that excavating the Pipelines and installing flowable fill eliminates
nearly every question mark regarding the threat of additional weight from
vehicular
traffic
because
such
fill
will
provide
100%
compaction
and
effectively distribute vehicular weight in a manner that can be
scientifically proven to not introduce unacceptable stress on the Pipelines,
there may not be a valid legal justification for Columbia to shift the
burden to a developer to finance stripping the coating, and later recoating,
the section of Pipelines at issue in order to allow Columbia to visually
inspect its own decades' old lines. Such more nuanced question (whether
the flowable fill sufficiently counteracts the risk introduced by the
developer so as to reasonably approach the status quo) was not squarely
before the Court because Grove's proposed crossing involved no excavation
of any kind (other than the minimal excavation needed to safely "bore" the
water-line under the transmission Pipelines).
Cf. Mid-Am. Pipeline Co. v. Lario Enterprises, Inc., 942 F.2d 1519, 1527
(10th Cir. 1991) (finding that multiple asphalt racetracks, which were as
39
Here,
the
undisputed
evidence
demonstrates
that
Grove's
proposed crossing would render Columbia's right of way minimally
less convenient because it impacts Coliambia's ability to conduct
close interval surveys" and would prevent Columbia from accessing
its Pipelines without first removing a portion of the asphalt road.
At the risk of stating the obvious, the trial evidence established
that it is more costly and time consuming to excavate an asphalt
road than to excavate an open field, particularly if such road is
the sole means of access to a residential development.^3
All that
said, there was no evidence suggesting any likelihood that a repair
wide as 60 feet, and involved increasing the "cover" over the pipelines to
as deep as 20 feet (the pipelines were originally 3 to 4 feet deep),
"materially interfere[d]" with the operation of the pipelines, but finding
that chain link fences and concrete barriers weighing 8,000 pounds each did
not unreasonably interfere
as
they were "readily movable"); Enbridge
Pipelines (Ozark), LLC v. Bailey, No. 09-CV-117-TCK-PJC, 2009 WL 2175587,
at *4 (N.D. Okla. July 14, 2009) (granting a preliminary injunction ordering
the removal of 10-15 feet of excess fill material, noting that such fill
both prevented adequate monitoring and delayed access to a section of the
pipeline with identifiable past integrity issues, but declining to order
the removal of 1-2 feet of excess fill located over a different section of
the pipelines); Columbia Gas Transmission, LLC v. Haas, — F. Supp. 3d --,
No.
CV
TDC-17-1147,
(concluding,
at
the
2018
WL
4387562,
at
*8
summary judgment stage,
(D.
that
Md.
Sept.
Columbia
14,
2018)
failed
to
establish that a tree within the pipeline easement "would impose an
unreasonable burden on Columbia Gas's ability to operate and maintain the
pipeline," in a case where the defendant's evidence indicated that such tree
could cause an approximately one to eight hour delay to emergency pipeline
repairs); Texas E. Transmission LP. v. Bowers, 65 F. App'x 791, 795 (3d Cir.
2003) (affirming the "district court's determination that the additional
ten hours (at the outside) to repair the pipeline [as a result of a tree's
presence] is only a 'minimal burden' and that the continued presence of the
Tree will not significantly interfere with emergency repair of the
pipeline").
In light of the fact that Grove's proposed crossing is immediately adjacent
to an existing paved road, the Court seriously questions Dr. Roby's
suggestion that the proposed crossing would improve Columbia's ability to
rapidly transport the excavation equipment needed to access its Pipelines.
40
will become necessary on the small section of Pipelines (26 feet)
that Grove proposes to cover with an asphalt road, and in fact,
there is
contrary
evidence suggesting
that
the Pipelines
in
question are in good condition with no known wall thinning,
corrosion, or other defects.
In support of its contention that the road, by its nature, is
an unreasonable interference,
Columbia maintains
that Virginia
case law evidences a ''strict" concept of interference, as reflected
in cases involving easements for ingress and egress.
See, e.g..
Willing v. Booker, 160 Va. 461, 465-66, 168 S.E. 417, 418 (1933)
(discussing Virginia case law holding that "carts, sleds, and other
chattels," and in some circumstances fences and gates, located
within a right of way are improper because they either encroach
upon its defined width or make the way "less convenient and
beneficial
than
before")
(citations
omitted).
This
Court,
however, notes that while Virginia cases involving obstructions in
an easement of defined width for the purpose of ingress and egress
are instructive, it appears that an analytical difference is
present with an underground pipeline easement.
Notably, in an
ingress/egress
has
case,
the
dominant
land-owner
first
and
foremost contracted for free and unobstructed above-ground use of
a defined width of land, and thus, buildings, fences, mulch piles,
and other obstructions that narrow such an easement may be viewed
as a "per se" unreasonable encumbrance.
41
In contrast, the easement
at issue in this case, first and foremost, conveys the rights
necessary to maintain an underground utility line, and expressly
reserves to the servient estate holder the right to fully use and
enjoy the surface, as long as such use does not unreasonably
interfere with the dominant estate holder's rights.
While Columbia
must retain reasonable access to the width of the easement for the
purpose of accessing and maintaining its Pipelines, unlike an
ingress/egress easement, it is highly doubtful that a small "mulch
pile" located on Columbia's easement would constitute a "material"
encroachment amounting to an unreasonable interference.
Such concept was recently recognized by the Supreme Court of
Virginia in a case where the roles were reversed, as it was the
servient
estate
holder
that
wanted
to
maintain
underground
"enc\ambrances" beneath a right of way that guaranteed the dominant
estate holder use of the surface for vehicular ingress/egress.
In
addressing the dispute as to whether the underground encumbrances
were "per se" unreasonable because the easement was of a defined
width, the Supreme Court of Virginia explained as follows:
[Virginia case law] establish[es] that a servient
landowner may not effectively narrow the defined width
of an easement by placing obstructions amounting to a
material encroachment on the dominant owner's rights,
even
when
ingress
the
and
encroachment
egress
at
that
does
not
time.
.
interfere
with
.
[the
Plaintiffs'] view, every encroachment,
minor, is material when the easement is
width.
We do not agree. Our cases make
owner of a servient estate may still make
.
In
no matter how
of an express
clear that the
reasonable use
of land burdened by an easement of defined width.
42
An
encroachment
that
does
not
narrow
the
width
of
an
easement or unreasonably interfere with its use is not
a material encroachment.
Piney Meeting House Investments/ Inc. v. Hart, 284 Va. 187, 194,
726 S.E.2d 319, 323 (2012) (internal quotation marks and citations
omitted).
This Court fully acknowledges that Columbia's ability to
maintain its underground Pipelines necessarily requires various
restrictions on above-ground uses, likely including a prohibition
on adding fifteen feet of excess fill, growing large trees with
deep roots directly over the Pipelines, or building a house, barn,
or other permanent enclosed structures.
However, whether a two-
lane perpendicular asphalt road covering only twenty-six feet of
Columbia's Pipelines is a sufficiently material encumbrance to
render Columbia's easement ''less useful or less convenient" is not
subject to a "per se" analysis, but rather, is a question for the
factfinder
at
trial,
and
"the
test
is
reasonableness."
Id.
(internal quotation marks and citations omitted).
The Court recognizes the cases, from within Virginia and from other
jurisdictions, concluding that trees and other large vegetation can
materially obstruct a pipeline company's ability to conduct aerial
surveillance seeking to detect leaks and/or surveillance to ensure that the
right of way is not being used by landowners in a manner that could
compromise the integrity of the pipelines. Moreover, in certain scenarios,
tree roots may pose a danger to the integrity of the pipelines and permanent
enclosed structures within the easement may introduce the risk of gas buildup
leading to a deadly explosion.
These issues, however, are factually
distinguishable from the two-lane perpendicular asphalt crossing at issue
in this case.
43
Having carefully listened to the trial testimony, the Court
continues
to
doubt
whether
Columbia
established
that
the
exceedingly minor impact on ''close interval" cathodic testing, or
minimal delays to hypothetical repairs, constitute "unreasonable
interference," assuming, of course, that the evidence otherwise
establishes
that
calculations.
a
As
crossing
summarized
was
"safe"
above,
based
the
on
wheel-load
case-specific
facts
demonstrated that: (1) the proposed road would have a de minimis,
if any, impact on aerial surveillance, "pig" testing, or cathodic
testing at defined stations, and that the impact on the "close
interval" cathodic testing is very minor; (2) there is no history
of damage or deterioration, and there has been no other reason to
access the Pipeline segments in question over the last six to seven
decades, with all of Columbia's available data from various testing
methods
indicating
condition;
that
(3) while
the
the age
Pipelines
of
the
are
presently
Pipelines is
in
good
a relevant
consideration, it is not a significant enough factor for Columbia
to deem it necessary to excavate and visually inspect the integrity
of its Pipelines even though they are immediately adjacent to an
elementary school and in a "high consequence area"—rather, for all
intents and purposes, Columbia trusts, and expects the public to
trust, the accuracy and reliability of its existing test results;
(4) the proposed asphalt crossing could delay a scheduled repair
by approximately four hours and an emergency unscheduled repair by
44
an additional four hours, although Columbia's expert has never
participated in the latter; (5) in the event of a repair, gas is
generally kept flowing unless there is a leak or another reason to
believe that there is an unacceptable risk;25 (6) Columbia has a
proven track record of maintaining its Pipelines under asphalt
crossings; and (7) in light of the nature of the proposed crossing,
its proximity to a large metropolitan area, and other relevant
facts,
the
equipment
necessary
to
excavate
asphalt road is reasonably available.
Grove's
proposed
In sum, the Court does not
formally decide whether the impact on testing/access is alone
sufficient to constitute
unreasonable interference," but notes
that the case-specific evidence raises substantial questions as to
whether Columbia could carry its burden to establish such degree
of interference.
4. Conclusion/STixomary of Findings
Having found that Grove's proposed crossing, if constructed
without
mitigation
measures,
would
constitute
a
material
encumbrance that unreasonably interferes with Columbia's lawful
right to safely maintain and repair its Pipelines {thus rendering
Columbia's easement less useful and less convenient), the Court
finds that an injunction is warranted in this case.
See Snead v.
Even if the gas needs to be shut off for the entire dig, there was no
evidence presented at trial reflecting whether digs are conducted **around
the clock," or whether the work schedule can simply be extended on the first
day by the additional time necessary to remove the asphalt road.
45
C & S Properties Holding Co., 279 Va. 607, 616, 692 S.E.2d 212,
216 (2010); Pizzarelle v. Dempsey, 259 Va. 521, 530-32, 526 S.E.2d
260, 265-66 (2000).
To the extent that further analysis on the
propriety of an injunction is necessary, Columbia has effectively
demonstrated that the crossing, if constructed without mitigation
measures, would cause irreparable harm in the form of a material
encroachment that threatens physical harm to the Pipelines, risks
the public safety, and compromises not only Columbia's ability to
repair the damage caused by vehicular traffic, but also compromises
its ability to safely transmit an uninterrupted supply of natural
gas to the Tidewater region.
See Shenandoah Acres, 256 Va. at
342, 505 S.E.2d at 371 (indicating that an ''injunction prohibiting
an interfering use" of an easement is appropriate "when the harm
from the interfering use is irreparable and cannot be adequately
addressed in damages").
Moreover, further consideration of the
relevant "equities" supports Columbia's requested relief because
Columbia's bargained for easement rights as the dominant estate
holder, as well as the public interest in safeguarding underground
high-pressure natural gas
Grove's
interest
in
transmission lines, vastly outweigh
saving
money
by
constructing
an
asphalt
crossing without necessary mitigation measures.
As suggested herein, had case-specific evidence effectively demonstrated
that Grove's proposed surface activities would not endanger the integrity
of the underground Pipelines, nor materially obstinact/delay access to such
Pipelines, the balancing of the equities would likely yield a different
46
For the reasons stated herein, the Court GRANTS Columbia's
request for a declaration that the crossing as proposed by Grove,
would violate Columbia's rights under the ROW Agreements, and that
Grove is therefore enjoined from building its proposed crossing in
accordance with its submitted plans, which did not include the
installation of mitigation measures, including, most importantly,
''flowable fill" installed to ensure that vehicular weight does not
damage the buried pipelines.
The Court DENIES Grove's request for declaratory relief that
would permit Grove to proceed with the development as proposed.
For the same reasons discussed herein. Grove has failed to carry
its
burden
relief.
to
demonstrate
that
it is
entitled
to
declaratory
The Court makes this finding because the proposed road,
if constructed without the mitigation measures necessitated by the
case-specific
conditions,
would
unreasonably
interfere
with
Columbia's easement rights.
The Clerk is REQUESTED to send a copy of this Opinion and
Order to all counsel of record.
IT IS SO ORDERED.
/s
Mark S. Davis
CHIEF UNITED STATES DISTRICT JUDGE
Norfolk, Virginia
January S
/ 2019
result.
47
RECEIVED
Z3I3 JAM -8 A 10= 00
CLERK US"DISTRICT COURT
.VIRGIN"
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