Rover Pipeline LLC v. Rover Tract No(s). WV-DO-SHC-021.220-ROW AND WV-DO-SHC-022.000-ROW et al
Filing
27
ORDER granting 15 Motion for Summary Judgment as to just Compensation, Granting Easements, Directing Payment of Just Compensation and Releasing Excess Cash Deposit. Signed by District Judge John Preston Bailey on 4/16/21. (jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
AT CLARKSBURG
ROVER PIPELINE LLC,
Plaintiff,
V.
Civil Action No. 1:18-cv-00097
Judge Bailey
ROVER TRACT NO(S). WV-DO-SHC-021 .220-ROW
AND WV-DO-SHC-022.000-ROW, MICHAEL HEADLEY,
SHERIFF OF DODDRIDGE COUNTY, WEST VIRGINIA,
JOHN B. MCCUSKEY, WEST VIRGINIA STATE AUDITOR,
APPALACHIAN ROYALTIES, INC., RUSSELL D. JONES,
CO-TRUSTEE OF THE RUSSELL D. JONES AND
NANCY J. JONES REVOCABLE TRUST, NANCY J. JONES,
CO-TRUSTEE OF THE RUSSELL D. JONES AND
NANCY J. JONES REVOCABLE TRUST, CARLA. SMITH,
ROBERT E. SWART, BARBARA HOOK,
STEVEN L. SWART, AGNES E. POE AIKIA
AGNES ELIZABETH POE, THE HEIRS, SUCCESSORS,
AND ASSIGNS OF MARTHA BOCK, PAMELA HELLYER,
AND UNKNOWN OWNERS,
Defendants.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO
JUST COMPENSATION, GRANTING EASEMENTS, DIRECTING
PAYMENT OF JUST COMPENSATION, AND RELEASING EXCESS CASH DEPOSIT
Presently pending before this Court is Plaintiffs Motion for Summary Judgment as
to Just Compensation Owed to Remaining Defendants [Doc. 15], flIed November 20,
2020. Because the time for responses has closed, this matter is now ripe for decision.
For the reasons set forth below, this Court will grant Plaintiffs Motion for Summary
Judgment.
I
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c); see Celotex Corp. v. Catreft, 477 U.S. 317, 322(1986). A genuine issue
exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, the
Court must conduct the threshold inquiry of determining whether there is the need for a
trial
—
whether, in other words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of
either party.” Anderson, 477 U.S. at 250.
Additionally, the party opposing summary judgment “must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita EIec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). That is, once the
movant has met its burden to show absence of material fact, the party opposing summary
judgment must then come forward with affidavits or other evidence demonstrating there
is indeed a genuine issue for trial. Fed. R. Civ. P.56(c); Celotex Corp., 477
25; Anderson, 477
u.s. at 323—
u.S. at 248. “If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Anderson, 477 U.S. at 249 (citations
omitted).
2
DISCUSSION
On February 3, 2017, Plaintiff filed its Verified Complaint for Condemnation [Civil
Action No. 1:17-CV-16, Doc. 2], seeking an order of condemnation for permanent
pipeline, temporary workspace, surface site, permanent and temporary road access,
and/or other rights-of-way and easements, which it subsequently amended on February
23, 2017 [Civil Action No. 1:17-CV-16, Doc.
491. On February 7,2017, Plaintiff filed its
Motion for Partial Summary Judgment and Immediate Access and Possession of
Easements to be Condemned [Civil Action No. 1:17-CV-16, Doc. 25], seeking immediate
access and possession to the easements described in its complaint. On February 23,
2017, Rover filed its Supplement to Motion for Partial Summary Judgment to incorporate
the easements added in its February 23, 2017 Amended Verified Complaint in
Condemnation [Civil Action No. 1:17-CV-16, Doe. 64]. On March 3, 2017, this Court
entered its Order Granting Rover Pipeline LLC’s Motion for Partial Summary Judgment
and Immediate Access and Possession of Temporary Easements to be Condemned [Civil
Action No. 1:17-CV-16, Doc. 355], confirming Plaintiffs right to condemn and permitting
Plaintiff to immediately access and possess the easements while the issue of just
compensation was determined.
Pursuant to the Courts March 3, 2017 order, Plaintiff deposited $7,000.00 for the
subject easements with the Court. See [Civil Action No. 1:17-CV-16, Doe. 356]. The
March 3, 2017 order provided that the Remaining Defendants were “entitled to draw from
the funds deposited by [Plaintiff] with the Clerk of the Court [theirl ownership share of the
amount of estimated just compensation deposited by IPlaintiff].” See [Civil Action No.
1:17-CV-16, Doe.
3551. The March 3, 2017 order further provided that the defendants
3
shall be entitled to interest calculated pursuant to 28 U.S.C.
§
1961 from and after the
date of entry of this Order on the difference between the principal amount deposited with
the
Court by [Plaintiff] and the amount of just compensation determined by the Court, if
such determination of just compensation to be paid exceeds the amount deposited by
[Plaintiff].’ [lii.
On March 22, 2018, this Court entered its Order Directing Plaintiff to File Separate
Amended Complaints for Unresolved Tracts, Economic Units or Ownership. See [Civil
Action No. 1:17-CV-16, Doc. 606]. On May 2,2016, Plaintiff filed its Verified Complaint
for Condemnation of Easement(s) Known as Tract No(s). WV-DO-SHC-021.220-RDW
and WV-DO-SHC-022.000-ROW [Doc. 1].
The total amount that Plaintiff deposited with the Court, $7,000.00, represented an
aggregate estimate of just compensation due to all owners. The aggregate estimate was
based on appraisal data and/or offers made to the surface owners and did not include
any amount specifically attributable to the interests of owners besides surface owners,
such as owners of mineral interests, easement interests, or lien interests.
Although
owners besides surface owners were named as defendants pursuant to Federal Rule of
Civil Procedure 71.1(c)(3), such owners had not alleged any compensable interference
with their interests in the subject property; accordingly, none of the estimated deposit
amount was specifically attributable to the interests of owners besides the surface
owners. The Remaining Defendants1 are comprised of those owners with an interest in
Plaintiff named ‘all those persons who have or claim an interest and whose names have
become known or can be found by a reasonably diligent search of the records,
considering both the property’s character and value and the interests to be acquired” as
defendants pursuant to Federal Rule of Civil Procedure 71.1 (c)(3). All defendants besides
the Remaining Defendants were previously dismissed from this action.
4
the coal in-place underlying the subject property (“Coal Owners”),2 those owners other
than Coal Owners with an interest in the subject property, such as mineral interests
(including leasehold, mining, or working interests), easement interests, or lien interests
(“Other Interest Owners”),3 and “Unknown Owners.” Pursuant to Federal Rule of Civil
Procedure 71.1(c)(3), Rover named the Unknown Owners as defendants out of an
abundance of caution.
The identities, interests, and whereabouts of the Unknown
Owners remain unknown.
The easements Plaintiff is seeking to condemn and the property upon which the
easements are located are more specifically described in Plaintiffs Verified Complaint for
Condemnation of Easements and Exhibit A thereto [Docs. 1 & 1-1]. As Plaintiff has
already taken possession of the easements, the only remaining issue for this Court is that
of just compensation to the Remaining Defendants for the subject takings.
On August 17, 2020, this Court entered a Scheduling Order [Doc. 12], which
established that Expert Disclosures were due on or before September 15, 2020. No
defendant has disclosed any experts by this deadline, and none has disclosed any
evidence regarding the amount of just compensation. To date, none of the Remaining
Defendants has filed a response to Plaintiffs motion for summary judgment.
2
The Coal Owners are Appalachian Royalties, Inc., Russell D. Jones, Co-Trustee of the
Russell D. Jones and Nancy J. Jones Revocable Trust, Nancy J. Jones, Co-Trustee of
the Russell D. Jones and Nancy J. Jones Revocable Trust, Carl A. Smith, Robert E.
Swart, Barbara Hook, Steven L. Swart. Agnes E. Poe a/kia Agnes Elizabeth Poe, the
Heirs, Successors, and Assigns of Martha Bock, and Pamela Hellyer. The term “Coal
Owners” does not include those individuals or entities, if any, who only own coal leasing
rights.
The Other Interest Owners are Michael Headley, Sheriff of Doddridge County, West
Virginia and John B. McCuskey, West Virginia State Auditor.
5
A.
Just Compensation
Just compensation “means the full and perfect equivalent in money of the property
taken,” which the United States Supreme Court has interpreted as meaning the fair
market value of the lands sought to be condemned. United States v. Miller, 317 U.S.
369, 373 (1943). The landowner bears the burden of proving the fair market value at trial.
See U.S. ex reL and for Use of Tennessee Valley Auth. v. Powelson, 319 U.S. 266,
273—74 (1943).
In cases such as this, in which the takings are “partial takings,” rather than
complete takings, “the measure of just compensation is the difference between the fair
and reasonable market value of the land immediately before the taking and the fair and
reasonable market value of the portion that remains after the taking. United States v.
Banisadr Bldg. Joint Venture, 65 F.3d 374, 378 (4th Cir. 1995). This same test applies
when the taking is merely an easement. See United States v. Payne, 368 F.2d 74,76—
77 (4th Cir. 1966). In order to prevail on summary judgment, therefore, the defendant
must, by appropriate admissible evidence, establish the fair market value of his property
before and after the takings, and demonstrate that there is no genuine issue of material
fact in dispute as to that amount.
On one hand, “Rio calculate the value of the property actually taken as a result of
the permanent easements, the Court must consider not only the market value of the
property and the amount of land taken, but also the percentage of the original bundle of
ownership rights that the owner retains on the encumbered land.” Portland Natural Gas
Transmission Sys. v. 19.2 Acres of Land, 195 F.Supp.2d 314, 322 (D. Mass. 2002);
see, e.g., United States v. 122.63 Acres of Land, 526 F.Supp. 539, 542 (D. Mass 1981).
6
On the other hand, “[t]akings of temporary easements are measured differently.” Portland
Natural Gas Transmission Sys., 195 F.Supp.2d at 322.
For temporary easement
condemnations, a landowner ‘must be compensated for the loss of use of property taken
by a temporary easement and any impairment of access to the property during the period
of construction.” Id.
Summary judgment is appropriate only if there is no genuine issue of material fact
with regard to the amount of just compensation due to the landowner. Hardy Storage
Co., LLC v. An Easement to Construct, Operate and Maintain 12-Inch and 20-Inch
Gas Transmission Pipelines Across Properties in Hardy County, West Virginia, et
aL, 2009 WL 900171 (ND. W.Va. Mar. 31, 2009) (Keeley, J.). Furthermore,
If the condemnor is the only party to admit evidence to the
Court of the value of the real property taken, the Court may
use that evidence to determine the just compensation of the
property and enter default judgment against defendant
landowners and award the defendants their just
compensation as determined by the condemnor.
Atlantic Coast Pipeline, LLC v. 1.52 Acres, More or Less, in Nottoway County,
Virginia, 2019 WL 148402, at *7 (E.D. Va. Jan. 9,2019) (Gibney, J.). Where a landowner
cannot meet its burden of proof with respect to just compensation, a court may award
nominal damages. Columbia Gas Transmission, LLC v. An Easement to Construct,
Operate and Maintain a 20-Inch Gas Transmission Pipeline Across Properties in
Allegheny County, Pennsylvania, 2018 WL 348844, at *5 (W.D. Pa. Jan. 10, 2018)
(Conti, C.J.).
1.
Coal Owners
Although the Coal Owners are entitled to just compensation for the taking, the
undisputed expert report submitted by Plaintiff concluded that ‘any coal underlying the
7
subject tracts” is “uneconomic and not commercially recoverable.” See [Doc. 13-1 at 4].
The undisputed expert report further states that “[a]ny coal underlying the subject tracts
has no development potential, and any value attributable to the coal property of the tracts
is inappreciable.” See [Id.].
The Coal Owners have failed to allege a compensable
interference with their coal interests and have failed to offer any admissible evidence in
this matter. Moreover, the Coal Owners failed to designate an expert witness to testify to
the value of the subsurface properties at issue and have offered no evidence of the
amount of just compensation due to them. All discovery deadlines have passed in this
matter and thus, the Coal Owners did not meet their burden of establishing just
compensation.
Accordingly, this Court awards $1.00 in nominal damages as just
compensation for the subject taking to the Coal Owners, as set forth in “Exhibit A”
attached hereto. As the addresses of some Coal Owners are unknown, retention of their
pro-rata just compensation awards in the Court’s registry until such Coal Owners with
unknown addresses seek to withdraw their pro-rata shares is appropriate.
2.
Other interest Owners and Unknown Owners
None of the remaining Other Interest Owners and no person or entity purporting to
be an Unknown Owner has appeared or otherwise sought to assert any claim related to
Plaintiffs taking. None of the Other Interest Owners or Unknown Owners has proffered
any evidence regarding just compensation or alleged any compensable interference with
their interests, if any. Accordingly, this Court awards $1.00 in nominal damages as just
compensation for the subject taking to the Other Interest Owners and Unknown Owners.
As the Other Interest Owners and Unknown Owners have not made any claim regarding
the amount of just compensation due for their particular types of interests, or how just
8
compensation should be allocated among owners with similar types of interests, retention
of the $1.00 of nominal damages in the Court’s registry until any Other Interest Owner or
Unknown Owner seeks to withdraw their proportionate share of the retained funds is
appropriate.
8.
Pre-judgment Interest
This Court has discretion to award pre-judgment interest if such interest is not
precluded by statute and when an award of pre-judgment interest will further the
congressional policies underlying the relevant statute. See Equitrans, L.P. v. O.56Acres
More orLess of Permanent EasementLocated in Marion Cty, W Virginia, No. 1:15-
CV-106, 2017 WL 1455023, at *1 (ND. W.Va. Apr. 21, 2017), affdsub nom. Equitrans,
L.P. v. Moore, 725 F. App’x 221 (4th Cir. 2018). Courts in this district have awarded pre
judgment interest in condemnation cases arising under the Natural Gas Act’s
condemnation provision, 15 U.S.C.
§
717f(h).
See id.
However, because Plaintiffs
previous just compensation deposit exceeded the amount of just compensation awarded
herein and the Remaining Defendants were entitled to withdraw such funds immediately
upon their deposit, the Court finds that an award of pre-judgment interest is not
appropriate in this case.
C.
Post-Judgment Interest
The Remaining Defendants are entitled to post-judgment interest from the date of
the entry of this order until such time as the just compensation is tendered to the
Remaining Defendants. Pursuant to 28 U.S.C.
§
1961, the amount of post-judgment
interest is the equivalent of the “weekly average 1-year constant maturity Treasury yield,
as published by the Board of Governors of the Federal Reserve System, for the calendar
9
week preceding the date of the judgment,” which is currently 0.06% per annum. As such,
this Court awards post-judgment interest to the Remaining Defendants whose addresses
are known and whose just compensation awards will not be retained in the Court’s
registry. The post-judgment interest shall be on said Remaining Defendants’ pro-rata
shares of the just compensation based on their percentage of ownership, as set forth in
Exhibit A attached hereto.
Post-judgment interest for those Remaining Defendants
whose addresses are known and whose just compensation awards will not be retained in
the Court’s registry shall include post-judgment interest from the date of entry of this order
until May 15, 2021, to allow for processing and mailing of payments to those Remaining
Defendants. For those Remaining Defendants whose addresses are unknown or whose
just compensation awards will be retained in the Court’s registry, the post-judgment
interest is $0.00, as the just compensation has already been paid into the Court’s registry
and will be available for any such Remaining Defendant immediately upon entry of this
Order.
D.
Payment of Just Compensation to Remaining Defendants and Release
of Excess Cash Deposit to Plaintiff
On March 3, 2017, pursuant to the Court’s initial order granting immediate access
and possession [Civil Action No. 1:1 7-CV-1 6, Doe.
3551,
Plaintiff deposited with the Court
$7,000.00 for the easements [Civil Action No. 1:17-CV-16, Dcc. 356].
The Court
DIRECTS the Clerk to transfer $7,000.00 of the funds previously deposited in Civil Action
No. 1:17-CV-16 (ND. W.Va.) to the account for this civil action, after which the total
amount of funds deposited in this civil action shall be $7,000.00.
Having concluded that the amount of nominal damages in this matter is $2.00, the
Court ORDERS that Plaintiff pay the Coal Owners with known addresses the aggregate
10
amount of $1.05 by May 15, 2021, as set forth in Exhibit A to this Order, which includes
post-judgment interest. Further, the Court ORDERS that the Clerk of the Court shall retain
in the registry of the Court, from the funds previously deposited by Plaintiff, $1.52 for the
Remaining Defendants, in the amounts set forth in Exhibit A to this Order, until any such
Remaining Defendant seeks to withdraw their proportionate share of the retained funds
from the Court’s registry.
Consequently, the Court ORDERS that $6,998.48 of the $7,000.00 in funds
deposited by Plaintiff shall be deemed to be excess funds, and the Court DIRECTS the
Clerk of Court to release and deliver such $6,998.48 of excess funds to Plaintiff.
CONCLUSION
For the foregoing reasons, this Court:
1.
GRANTS
Plaintiffs
Motion
for
Summary
Judgment
as
to
Just
Compensation Owed to Remaining Defendants [Doc. 15];
2.
GRANTS and CONVEYS to Plaintiff the easements requested and more
fully described in Plaintiffs’ Complaint [Doc. 1];
3.
ORDERS that nominal damages of $1.00 collectively is awarded to the Coal
Owners for their pro-rata shares of the Coal underlying the subject property, as set forth
in Exhibit A;
4.
ORDERS that nominal damages of $1.00 collectively is awarded to the
Other Interest Owners and Unknown Owners and shall be retained in the Court’s registry,
as set forth in Exhibit A, until any Other Interest Owner or Unknown Owner seeks to
withdraw his or her share of the retained funds from the Court’s registry;
11
5.
ORDERS Plaintiff to make payment by mail to those Coal Owners with
known addresses in the amounts set forth in Exhibit A;
6.
DIRECTS the Clerk to retain in the Court’s registry $1.52 for the Remaining
Defendants from the funds previously deposited by Plaintiff, as set forth in Exhibit A, until
any of said Remaining Defendants seeks to withdraw his or her share of the retained
funds from the Court’s registry;
7.
DIRECTS the Clerk to provide to Plaintiff a copy of its Judgment in a Civil
Action once entered;
8.
ORDERS Plaintiff to provide the Clerk’s Judgment in a Civil Action to the
Coal Owners with known addresses, together with payment of the Coal Owners’ pro rata
share of the nominal damages award;
9.
APPROVES Plaintiffs “Memorandum of Condemnation,’1 a copy of which is
attached hereto as ‘Exhibit B,” and once it has been executed, ORDERS Plaintiff to file
said Memorandum of Condemnation, with the exhibits referenced therein, with the Clerk
of the County Commission of Doddridge County, West Virginia;
10.
DIRECTS the Clerk to transfer $7,000.00 of the funds deposited in Civil
Action No. 1:17-CV-16 (ND. W.Va.) to the account for this civil action. $7,000.00 is the
amount that Rover previously deposited in Civil Action No. 1:1 7-CV-1 6 for the easements
at issue in this civil action;
11.
Once the Clerk has transferred the $7,000.00 from the account for Civil
Action No. 1:17-CV-16 to the account for this civil action, the Court DIRECTS the Clerk
to pay out to Rover the balance of the excess combined deposits in the amount of
12
$6,998.48, less costs or expenses, if any, due to the Court or Clerk by virtue of this civil
action, by check made payable to “Rover Pipeline LLC,” and mailed to:
Rover Pipeline LLC,
do Lauren A. Williams, Esq.
Steptoe & Johnson PLLC
400 White Oaks Boulevard
Bridgeport, WV 26330.
12.
DISMISSES the Remaining Defendants and Unknown Owners WITH
PREJUDICE.
This case is now DISMISSED WITH PREJUDICE and the Clerk is DIRECTED to
enter judgment for $2.00 of nominal damages in favor of the Remaining Defendants and
Unknown Owners, plus post-judgment interest where applicable, all as set forth in Exhibit
A, to STRIKE this action from the active docket of this Court, and to classify this case as
CLOSED.
It is so ORDERED.
The Clerk shall transmit copies of this Order to all counsel of record.
DATED: April
Bc. 2021.
JOH*CESfON BAILEY
UNITED STATES DISTRICT JUDGE
13
Submitted and prepared by:
Is! Lou A. Dawkins
Lori A. Dawkins (WV Bar #6880)
Steptoe & Johnson PLLC
lori.dawkins@steptoe-johnson.com
400 White Oaks Boulevard
Bridgeport, West Virginia 26330
(303) 389-4300
Lauren A. Williams (WV Bar #11943)
Steptoe & Johnson PLLC
lauren.williamssteptoe-johnson.com
400 White Oaks Boulevard
Bridgeport, West Virginia 26330
(304) 933-8000
William D. Wilmoth (WV Bar #4075)
Steptoe & Johnson PLLC
william.wilmoth@steptoe-johnson.com
1233 Main Street, Suite 3000
Wheeling, West Virginia 26003
(304) 233-0000
Counsel for Plaintiff Rover Pipeline LLC
12561752
14
Coal Ownership
Percentage
8.90410959%
6.42530985%
3.2 1265492%
3.2 1265492%
3.2 1265492%
1.36966301%
2.73972603%
Russell D. Jones and Nancy J.
Jones Revocable Trust. do CoTrustees Russell D. Jones and
Nancy J. Jones
Carl A. Smith
Robert B. Swart
Barbara Hook
Steven L. Swart
Agnes E. Poe a/k/a Agnes
Elizabeth Poe
the Heirs. Successors, and
Assigns of Martha Bock
Pamela Hellyer
2.
3.
4.
5.
6.
8.
9.
3.2 1265492%
8.90410959%
Appalachian Royalties, Inc.
Remaining Defendants with
Coal Interests
1.
Coal Owners
$0.08
S0.07
$0.03
$0.08
$0.08
$0.08
$0.16
$0.21
$0.21
.
Just
Compensation
to Defendant
$0.01
N/A
$0.01
N/A
$0.01
$0.01
N/A
N/A
$0.01
PostJudgment
Interest to
Defendant
$0.09
$0.07
$0.04
$0.08
$0.09
$0.09
$0.16
$0.21
$0.22
Total
Amount to
Defendant
Mail
Registry
Mail
Registry
Mail
Mail
Registry
Registry
Mail
Method of
Payment to
Defendant
The Coal Owners own only a combined 41.119373777% of the coal interests. Accordingly, their coal ownership percentages must be multiplied by 2.43 to
raise their combined ownership to 100% ofthejust compensation award of$l.O0. The amounts shown in the table above were rounded to the nearest $0.01.
A.
Total Just Compensation Award: $2.00 of Damages
(ROVER TRACT NO(S). WV-DO-SHC-021.220-ROWAND WV-DO-SHC-022.000-ROW)
EXHIBIT A
1: 18-cv-00097
Method of
Payment to
Defendant
$6 998 48
$1.52
Total amount to remain in Court’s Registry for Remaining Defendants
Total Amount to be released from Court’s Registry to Plaintiff
(from funds deposited at Civil Action No.1:1 7-cv- 16, Doe. 356)
$0.532
N/A
Total
Amount to
Defendant
Total amount to be mailed by Plaintiff to Remaining Defendants
$1.00
PostJudgment
Interest to
Defendant
Registry
N/A
Michael Headley, Sheriff of
Doddridge County, West Virginia;
John
B. McCuskey, West Virginia
State Audilor; and Unknown Owners
Just
Compensation
to Defendant
$1.00
Ownership
Percentage
Remaining Defendants with Other
Interests and Unknown Owners
Remaining Other Interest Owners and Unknown Owners
2
This amount will be mailed directly from Plaintiff to those Coal Owners whose addresses are known. Accordingly, this amount is included in the total amount
to be released from the Court’s Registry to Plaintiff.
2
12561850
B.
EXHIBIT B
MEMORANDUM OF CONDEMNATIOrc
This MEMORANDUM OF CONDEMNATION (hereinafter ‘Memorandum”) dated the
day of
2021 by Rover Pipeline LLC (hereinafter “Rover”), a Delaware
limited liability company with a principal place of business at 8111 Westchester Drive, Suite 600,
Dallas, Texas 75225, regarding the cases styled as Rover Pipeline LLC v. Rover Tract No(s). WV
DO-SHB-009.972-TAR-JA, c/al., Civil Action No. 1:1 7-CV-1 6, and Rover Pipeline LLC v. Rover
Tract Noft). WV-DO-SHC-02].220-RQW and WV-DO-SHC-022.000-ROW, ci at., Civil Action
No. 1:1 8-CV-97, in the United States District Court for the Northern District of West Virginia
(both cases are hereinafter collectively referred to as the “Condemnation Proceeding”), for
easements across certain real property described as surface tax parcel Nos. 08-08-0035-0000-0000,
08-08-0022-0000-0000, 08-08-0020-0000-0000, and 08-08-0011-0000-0000, composed of
241.73, more or less, located in Doddridge County, West Virginia, and being more particularly
described in a deed recorded in Deed Book 274, Page 318, in the Office of the Clerk of the County
Commission of Doddridge County, West Virginia (hereinafter ‘Property”). The Remaining
Defendants listed hereinbelow are believed to own certain rights, titles, and interests in the
Property at issue in the Condemnation Proceeding.
WHEREAS, Rover filed its Complaint on February 3. 2017, styled Rover Pipeline LLC v
Rover Tract No(cj IVV-DO-SHB-009.972-TAR-IA, c/at., Civil Action No. 1:17-CV-16. in the
United States District Court for the Northern District of West Virginia, which was subsequently
amended on February 23, 2017 (hereinafter the “Omnibus Action”);
WHEREAS, pursuant to an order of the Court in Civil Action No. l:l7-CV-l6, Docket
No. 606, Rover filed its Complaint on May 2, 2018, styled Rover Pipeline LLC v. Rover Tract
No(sj WV-DO-SHC-021.220-ROW and WV-DO-SHC-022.000-ROW, ci aL, Civil Action No.
1:18-CV-97 in the United States District Court for the Northern District of West Virginia
(hereinafter the “Tract-Specific Action”);
WHEREAS, the Verified Complaint for Condemnation of Easement(s) Known as Tract
No(s). WV-DO-SHC-021.220-ROW and WV-DO-SHC-022.000-ROW and Exhibit A thereto,
copies of which are attached hereto as “Exhibit A,” describe and depict the size, location, and
nature of the easements on the Property (hereinafter the “Easements”);
WHEREAS, in the Omnibus Action, the Court entered an order March 3,2017, granting
Rover’s motion for partial summary judgment and motion for preliminary injunction and
immediate possession of the Easements as shown in the court file for Civil Action No. l:17-CV16 as Docket No. 355;
WHEREAS, on March 3,2017, Rover deposited funds with the Clerk of Court as shown
in the court file for Civil Action No. 1:1 7-CV-l 6 as Docket No. 356;
WHEREAS, the Court entered an order in the Tract-Specific Action dated
2021, Docket No.
and attached hereto as “Exhibit B” granting Rover’s motion
for summary judgment as to just compensation owed to the Remaining Defendants, who are
—,
Page I of7
Michael Headley, Sheriff of Doddridge County, West Virginia, John B. McCuskey, West Virginia
State Auditor, Appalachian Royalties, Inc., Russell D. Jones and Nancy J. Jones, Co-Trustees of
the Russell D. Jones and Nancy J. Jones Revocable Trust, Carl A. Smith, Robert E. Swart, Barbara
Hook, Steven L. Swart, Agnes E. Poe a/k/a Agnes Elizabeth Poe, the Heirs, Successors, and
Assigns of Martha Bock, Pamela Hellyer, and Unknown Owners for their respective interests in
the Easements acquired by Rover as shown in the court files for the Condemnation Proceeding;
NOW, THEREFORE, WITNESSETH: That Rover hereby publishes this Memorandum
of Condemnation to give notice of the Easements granted and conveyed to Rover pursuant to the
Condemnation Proceeding and to establish record title from the named Remaining Defendants
listed hereinbelow to Rover in and to the Easements shown on “Exhibit A.” Rover hereby
acknowledges the accuracy of the foregoing recitals, which are incorporated herein by reference
and made a part hereof:
1.
NAMES AND ADDRESS OF PARTIES. The names of the remaining parties to
the Condemnation Proceeding, and their respective last known addresses are as follows:
PLAINTIFF:
I. Rover Pipeline LLC
8111 Westchester Drive, Suite 600
Dallas, Texas 75225
REMAINING DEFENDANTS:
1. Michael Headley,
Sheriff of Doddridge County, West Virginia
135 Court St.
West Union, WV 26456
2. John B. McCuskey, West Virginia State Auditor
1900 Kanawha Blvd. E
Building 1, Room W-100
Charleston, WV 25305
3. Appalachian Royalties, Inc.
c/o E. Jude Gore
P.O. Box 1917
Clarksburg, WV 26302-19 17
4. Russell D. Jones and Nancy J. Jones, Co-Trustees of the
Russell D. Jones and Nancy J. Jones Revocable Trust
Unknown Address
5. Carl A. Smith
Unknown Address
Page 2 of7
6. Robert E. Swan
994 Harbor View Dr.
Westerville, OH 4308!
7. Barbara Hook
16999 Wend Dr.
Nelsonville, OH 45764
8. Steven L. Swan
Unknown Address
9. Agnes E. Poe aik’a Agnes Elizabeth Poe
178 Gilboa Rd.
Fairmont. WV 26554
10. The Heirs, Successors, and Assigns of Martha Bock
Unknown Address
II. Pamela Hellyer
7558 Bay Hill Rd.
Pickerington, OH 43147
12. Unknown Owners
2.
DESCRIPTION OF CONDEMNATION, EASEMENTS, AND DURATION
OF EASEMENTS. The Order granting condemnation attached hereto as Exhibit B conveys all
of the Remaining Defendants rights. titles. and interests in and to the Easements described and
depicted on Exhibit A hereto. which is incorporated by reference as if fully set forth herein. The
Property upon which the Easements are located is more fully described as follows:
A tract of land containing 77 acres. 6 poles:
Beginning at a hickory, corner to Chapman, N. IS E. 26 poles to red
bud; N. 38 E. 10 poles to a stone; N. 52 E. 14 pole to d stone pile;
N. II E. 10-3/4 poles to a locust, corner to Nancy Davis; N. II W.
54 poles to a stone; N. 53 E. about 10 poles; N. 36 W. 6 poles to a
stone; East 30 poles to a stake, corner to Virginia Murdock; N. 14
E. 36 poles to A. W. Smith; N. 3 E. 26-3/4 poles to a stone, corner
to A. W. Smith; thence with three lines thereof. N. 37-1/2 W. 74
poles to a B. 0. and stone; N. 14 W. 8.6 poles to a stake; N. 76 W.
48-1/2 poles to a W. 0.; S 48 W. 63 poles to a C. 0. corner to S. S.
Spencer and Eli Davis; S. 50-1/2 E. 34 poles to a locusi; S. 50 E. 12
poles to a post; N. 56-1/2 W. 20 poles to a stone; S. 4 W. 46 poles
to a rock; 5. 20 E. 29-1/3 poles to a black walnut; S 30-1/3 E. 223/4 poles to a stone; S. 10 W. 32 poles to a stake; S. 76 W. 10 poles
Page 3 of 7
to a stone; thence 5 1-1/2 E. 49 poles to the beginning, containing 77
acres and 6 poles, more or less.
A tract of land containing 36 and 88/160 acres:
Beginning at a stone in a line of Ezekiel Davis, and running thence
N. 23 E. 70.6 poles to a stone in a line of Jacob Swentzel; thence
with two of Swentzels lines S. 50 E. 33 poles to a sassafras with
hickory sapling pointer; thence S. 37 E. 33.7 poles to a hickory in
said Swentzeis line with C. 0. pointers, a corner to lands formerly
owned by C. A. Shuman; thence with six of his lines S. 40 V. 58
poles crossing run to a stone S. 38 1/2 E. 12 poles to a locust; S. 7
1/4W. 16.9 poles to a black walnut; S. 43/4W. 20 poles to a forked
lynn; S. 7 1/4 W. 16.4 poles to a post on a ridge; S. 563/4 E. 13.7
poles to a post in a line of Johnson Smith; thence with a line of same
S. 39 1/2 \V. 13 poles to a chestnut oak; thence N. 38 W. 52 1/2
poles stone to a stone in place of a red oak stump with small ash
pointers; N. I E. 6 ‘A poles to a \V.O. stump; thence 5. 74 \V. 3 poles
to a stone, a corner to Ezekiel Davis; thence with three of his lines
N. 2 1/2 E. 58 poles crossing a run to a stone; thence N. 70 \V. 4/
poles to a stone; N. 77W. 4 poles to the beginning, containing thirtysix and 88/160 (36 88/160) acres, more or less.
A tract of land containing 41 and 60/160 acres:
Beginning at a white oak with white pointers on a ridge, a corner to
lands of Johnson Williams. and finning thence N. 37 W. 43 poles to
a hickory, a corner to C. L. Shuman; thence with six of his lines S.
40 W. 58 poles crossing a run to a stone; thence S. 38 1/ 2 E. 12
poles to a locust; S. 7 I / 4 W. 16.9 poles to a black walnut; S. 4/ W.
20 poles to a double lynn; S. 7 1/ 2 W. 16.4 poles to a post on a
ridge; 5. 56 1/4 E. 13.7 poles to a post in a line of Johnson Smith;
thence with six of his lines N. 39 1/2 E. 21.2 poles to a white oak
stump; S50 1/2 E. 18.2 poles to a stone pile: N. 80 E. 24 poles to a
stone on a knob; N. 39 1/2 B. 18-1/3 poles to a hickory; N. 42 E. 7
1/4 poles to a chestnut oak stump with a C.O. pointer; N. 611 / 2 B.
26 1/4 poles to a chestnut oak on a ridge, a corner to lands of PB.
McClain; thence with two of his lines N. 6 W. 35 1/ 2 poles to a
chestnut oak pointer; N. 53 W. 34 1/4 poles to a locust; a corner to
Johnson Williams; thence N. 82 1/4W. 29 ‘A poles to the beginning,
containing forty-one and 60/160 (41 60/160) acres, more or less.
A tract of land containing 28 acres:
Beginning at a stone with red oak pointer, in a line of B. B. Davis
and a corner to lands of W. S. Russell and running thence with three
of said Russell’s lines N. 24 W. 47.3 poles to a stone; thence N. 44
Page 4 of7
¼ W. 9.4 poles to a white oak on a ridge; thence N. 45 3/4 E. 48.6
poles to a chestnut oak; thence N. 7! ¼ E. 6.95 poles to a stone bn a
knob, a corner to the Lavina Swiger 5 3A acre tract; thence with a
line of Edgar Davisson S. 70 E. 43 1/2 poles to a chestnut oak snag;
thence S. 50 E. I pole to a stone with C.O. pointers, a corner to C.
L. Shuman; thence with his line 5. 23 W. 70.6 poles to a stone;
thence N. 77 W. 10 poles to a stone, a corner to lands of E. B. Davis;
thence with his line S. 75 W. 23.4 poles to the beginning, containing
twenty-eight (28) acres, more or less.
A tract of land containinz 32 acres:
Beginning at a stone in the county road leading up Pock Run, a
corner to lands of Rebecca Toothman, and running thence, down the
road near the center thereof S. 8° E. 30 poles to a stone; S. 18° E. 16
poles to a stone in road, corner to the Ezekiel Davis tract of land;
thence with three lines of the same, N. 1/40 E. 25 poles to a stone;
S. 84° E. 9.3 poles to a red oak; thence S. 83 1/2° E. 65-2/3 poles to
a black oak; thence N. 75° E. 14 poles to a stone; thence S. 24° W.
47.3 poles to a stone; N. 443/4°W. 9.4 poles to a W.O. on the point;
thence N. 453/4° W. 9.4 poles to a W.O. on the point; thence N. 45
3/40
E. 48.6 poles to an A.O. corner to lands of William Vincent;
thence N. 5534° W. 13.7 poles to a C.O. bush, corner of lands of
Rebecca J. Toothman; thence with eight lines of same 5. 401/4° W.
20.4 poles to a small hickory bush, with sassafras pointers, thence
N. 40 1/40 W. 7.3 poles to a stone; 5. 66° W. 18 poles to a stone, 9
feet west of a spring; S. 60° W. 20 Poles to a stone; S. 47 1/2° W.
16 poles to a stone; 5. 29° W. IS poles to a sycamore; and thence N:
891/2° W. 12 poles to the beginning, containing 32 acres of land,
more or less.
A tract of land containing 26 ¼ acres:
Beginning at a sycamore standing on the west side of old county
road and a corner to W. S. Russell. and running thence N. 98 1/2°
W. 12 poles crossing a branch of Rock Run, to a stone in county
road; thence up the said road, N. 13° W. 20.6 poles to a stone in
road; thence N. 44° E. 8 poles in road; N. 35° E. 30 poles in road;
N. 18 3/ 4° W. 8 poles in road; thence N. 7 1 / 2° W. 1 8 poles in road;
N. 25° W. 6 poles in road; N. 44° E. 6 poles in road; N. 73° E. 4
poles in road; N. 59 1/2° E. 6 poles in road; N. 88 1/2° E: 7 poles in
road; 5. 631/2° E. 13 poles in road; N. 82° E. 5 poles in road; N.
61° E. 9 poles in road; N. 70 1/2° E. 19 poles in road; thence leaving
the county road and running with the old county road S. 30°.E. 8
poles in road; 5. 59° E. 10 poles in road; 5. 37 1/2° E. 8 poles in
road; 5. 5° E. 6 poles in road; 5. 331/4° W. 8 poles to a stone on
east side of road; 5. 55 3/ 4° E. 4.3 poles to a chestnut oak bush;
Page 5 of 7
thence S. 40Y2° W. 22.4 poles to a small hickory bush, with
sassafras pointer; thence N. 41 1/2° W. 7.3 poles to a stone; thence
N. 61 3/4° W. 15 poles to a stone; S. 66° W. 18 poles to a stone,
nine feet west of a spring; S. 60° W. 20 poles to .a stone; S. 47 1/2°
N. 16 poles to a stone; thence S. 29° W. IS poles to the beginning,
containing 27 acres, reserving however, from this boundary, a small
lot of about 3/4 acre heretofore conveyed to Milo Kimball by deed
dated October 30, 1920, and of record in the Office of the Clerk of
the County Commission of Doddridge County, West Virginia, in
Deed Book No. 76, at page 214, leaving of said tract of 27 acres, 26
1/4 acres hereby conveyed.
Said descriptions being contained in that certain deed recorded in Deed Book 274, Page
318 in the Office of the Clerk of the County Commission of Doddridge County, West Virginia.
3.
PUBLIC NOTICE. This Memorandum shall provide public notice of the rights,
titles, and interests in and to the Easements shown on Exhibit A hereto as acquired from the
Remaining Defendants listed herein by Rover pursuant to the Condemnation Proceeding, and it
shall not enlarge, diminish, modify, or abridge the terms and conditions set forth in the
Condemnation Proceeding.
THIS MEMORANDUM OF CONDEMNATION IS NOT A COMPLETE SUMMARY OF
THE CONDEMNATION PROCEEDING. IN THE EVENT OF A CONFLICT BETWEEN
THE TERMS OF THIS MEMORANDUM OF CONDEMNATION AND THE
CONDEMNATION PROCEEDING, THE TERMS AND PROVISIONS OF THE
CONDEMNATION PROCEEDING SHALL CONTROL.
IN WITNESS WHEREOF, Rover has executed this Memorandum of Condemnation as
of the date of the respective acknowledgement below.
[Signature and acknowledgment page olloivsJ
Page 6 of 7
ROVER PIPELINE LLC
By:
Name:
Its:
ACKNOWLEDGMENT
STATE/COMMONWEALTH OF
COUNTY OF
On this, the
day of
personally appeared
,
2021, before me, the undersigned officer,
who acknowledged himself/herself to be the
of ROVER PIPELINE LLC, a Delaware limited liability
company, and that being authorized to do so, executed this instrument for the purposes therein
contained by signing the name of the company by himself/herself as said officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
My Commission expires:
(NOTARIAL SEAL)
NOTARY PUBLIC
This instrument was drafted by the following attorney; when recorded, please return to:
Lauren A. Williams, Esq.
Steptoe & Johnson, PLLC
400 White Oaks Blvd.
Bridgeport, WV 26330
12563165
Page 7 of 7
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