Columbia Gas Transmission,LLC v. McCracken et al

Filing 38

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT, AND CONVERTING STATUS AND SCHEDULING CONFERENCE TO A HEARING ON ALL REMAINI NG ISSUES: Granting in part and Denying in part 29 Motion for Summary Judgment; Denying 33 Motion for Partial Summary Judgment; and setting Hearing on remaining issues for 10/27/2014 01:15 PM in Judge Stamp Chambers before Senior Judge Frederick P. Stamp Jr. Signed by Senior Judge Frederick P. Stamp, Jr on 10/6/14. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
COLUMBIA GAS TRANSMISSION, LLC,
Plaintiff,
v.

Civil Action No. 5:13CV39
(STAMP)

ROGER McCRACKEN and
KATHLEEN McCRACKEN,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT,
DENYING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT,
AND CONVERTING STATUS AND SCHEDULING CONFERENCE
TO A HEARING ON ALL REMAINING ISSUES
I.

Procedural History

The plaintiff, Columbia Gas Transmission, LLC (“Columbia”),
filed this civil action in this Court alleging that the defendants,
Roger and Kathleen McCracken (“the McCrackens”) are impeding their
efforts by denying a right-of-way onto the McCrackens’ property.
This right-of-way, Columbia contends, would be used to protect an
underground gas line that needs to be replaced by an above-ground
gas line temporarily because of longwall mining which is being
performed

by

another

company.

Columbia

seeks

a

declaratory

judgment that it may, under the terms of the right-of-way agreement
entered into by the parties (“ROW”), lay a 6" pipe across the
McCracken right-of-way; take any necessary steps in order to lay

that pipe; and also access an adjoining property, the Turley
property, from the McCrackens’ property.
The McCrackens’ answer denies that they have refused or
obstructed Columbia, breached the right-of-way, or that the rightof-way allows Columbia to take any of the action it seeks to take.
Further, the McCrackens contend that Columbia has an alternate
route of access to the Turley property and thus, the access by way
of the McCrackens’ property is not required.

The McCrackens have

also filed a counterclaim which alleges that the pipe has been laid
by Columbia and the McCrackens are thus asserting claims for
trespass and nuisance by Columbia.
Columbia then filed a motion for summary judgment which
requests, among other relief, that this Court grant a permanent
injunction against the McCrackens.

This Court had previously

denied Columbia’s motion for temporary restraining order and/or
preliminary injunction as moot as the parties had entered an
interim consent order.

Columbia incorporates the arguments from

that motion in its motion for summary judgment.
The McCrackens then filed a response coupled with a motion for
partial summary judgment. Additionally, the parties filed a status
report after the motions for summary judgment were fully briefed
informing the Court that the pipeline had been buried.

However,

further longwall mining was set to occur and Columbia again had to
place a temporary pipeline above surface.

2

II.

Facts

In its motion for summary judgment, Columbia first argues that
the maintenance it undertook on the McCracken property was pursuant
to the ROW that governs the property. Columbia contends this is so
because the ROW permits it to maintain and operate the pipeline, to
go “over and through” the land with the pipeline, and to change the
size of the pipeline. Next, Columbia asserts that it is within the
terms of the ROW by accessing the Turley property by way of the
McCracken property.

This is so because (1) the McCracken ROW has

broad terms of “ingress, egress, and regress”; (2) Columbia has
historically accessed the Turley property by way of the McCracken
property–which the McCrackens do not dispute; (3) it is necessary
for

Columbia

to

use

the

ROW

because

the

Turley

property

is

landlocked behind the McCracken property.
Based on the assertions above, and the parties’ agreements
that there is an actual and justiciable controversy and all
necessary parties are part of this action, Columbia argues it is
entitled to a declaratory judgment that it acted and is acting
within the confines of the ROW.

Further, if this Court finds that

a declaratory judgment is warranted, Columbia holds that it is
entitled to (1) judgment as to its nuisance, trespass, and breach
of contract claims; (2) a permanent injunction and adopts its
previous

motion

for

a

permanent

injunction

(which

was

not

considered by this Court initially as the parties had entered into

3

an

interim

counterclaims

order);
for

and

(3)

nuisance

dismissal

and

trespass.

of

the

McCrackens’

Finally,

Columbia

contends that the McCrackens may not seek damages in this forum but
are required to seek them through an arbitration process.
The McCrackens filed a response to Columbia’s motion for
summary judgment and a motion for partial summary judgment.

In

their response, the McCrackens contend that Columbia’s placement of
a second pipeline, its continued use of the property to access the
Turley property when there is another access road it could use, and
the abandonment of the original pipeline on the property are all
outside the ROW terms.

The McCrackens thus request summary

judgment on their liability claims of nuisance, trespass, and
breach of contract.
The McCrackens argue that Columbia’s use of their property to
access the Turley property is outside the scope of the ROW which
states that Columbia has “the right to ingress, egress, and regress
to and from the same.”

The McCrackens contend that “the same”

refers to the McCracken property and not to any other property.
Further, in a footnote, the McCrackens assert that Columbia does
not have a history of using the ROW access to the Turley property.
The McCrackens also assert that the installation of the second
pipeline was not within the terms of the ROW because it is limited
to one pipeline and longwall mining was not contemplated by the
parties in 1937.

4

Finally, the McCrackens argue that the arbitration provision
of

the

ROW

does

not

apply

to

the

above

claims

because

the

arbitration section only applies to claims for damages which “may
arise to crops and fences” and the McCrackens are not seeking
damages for crops and fences.

The McCrackens state that their

motion for partial summary judgment is sought as to the liability
counts in Columbia’s complaint–nuisance, trespass, and breach of
contract.
In response, Columbia reviews its argument that the historical
use of the pipeline allows a right to access the Turley property
and that the intentions of the parties at the time of the creation
of the ROW controls.

Columbia contends that the McCrackens are

clearly mistaken in their belief that Columbia did not have access
to the Turley property as they already admitted this in their
answer.1

Further, Columbia asserts that it is irrelevant that

there is another road because of the intent of the ROW, but
further, that the McCrackens have failed to support an assertion
that Columbia has access to another road.

As to the McCrackens’

longwall mining argument, Columbia contends that it is irrelevant
as Columbia is not the one conducting the mining and secondly, it
is a “red herring” because courts have recognized that longwall

1

In their answer, the McCrackens admit that Columbia
accessed Turley property by way of their property. However,
add that such access is permissive and that there is a locked
across the private road being used and that the McCrackens
provided Columbia with the key.
5

has
they
gate
have

mining has been utilized since as early as 1911 in West Virginia.
Columbia further avers that it has buried most of the pipeline that
was on the surface, that it is only operating one of the pipelines,
and that it has taken several temporary protective measures to ease
the burden on the McCrackens.

Finally, Columbia argues that the

McCrackens cannot seek judgment on the breach of contract claim
because they never pleaded a breach of contract claim. Finally, as
to Columbia’s request for an injunction, the parties set forth
similar arguments as those provided in the parties’ briefing for
the motions for summary judgment.
For the reasons that follow, this Court grants in part and
denies in part Columbia’s motion for summary judgment and denies
the McCrackens’ partial motion for summary judgment.
III.
Summary

judgment

is

Applicable Law
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).

The

party seeking summary judgment bears the initial burden of showing
the absence of any genuine issues of material fact.
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

See Celotex

“The burden then

shifts to the nonmoving party to come forward with facts sufficient
to create a triable issue of fact.”

6

Temkin v. Frederick County

Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
However, as the United States Supreme Court noted in Anderson,
“Rule 56(e) itself provides that a party opposing a properly
supported motion for summary judgment may not rest upon the mere
allegations or denials of his pleading, but . . . must set forth
specific facts showing that there is a genuine issue for trial .”
Anderson, 477 U.S. at 256. “The inquiry performed is 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.”

Id. at 250;

see also Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th
Cir. 1979) (Summary judgment “should be granted only in those cases
where it is perfectly clear that no issue of fact is involved and
inquiry into the facts is not desirable to clarify the application
of the law.” (citing Stevens v. Howard D. Johnson Co., 181 F.2d
390, 394 (4th Cir. 1950))).
In Celotex, the Court stated that “the plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a
showing

sufficient

to

establish

the

existence

of

an

element

essential to that party’s case, and on which that party will bear
the burden of proof at trial.”

Celotex, 477 U.S. at 322.

7

Summary

judgment is not appropriate until after the non-moving party has
had sufficient opportunity for discovery.

See Oksanen v. Page

Mem’l Hosp., 912 F.2d 73, 78 (4th Cir. 1990), cert. denied, 502
U.S. 1074, 112 S. Ct. 973, 117 L.Ed.2d 137 (1992).

In reviewing

the supported underlying facts, all inferences must be viewed in
the light most favorable to the party opposing the motion.

See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587(1986).
IV.

Discussion

Initially, this Court notes that it will consider the parties’
concise statements of material facts.
notes

that

it

does

not

have

a

However, this Court further

local

rule

requiring

such

a

statement, but recognizes that other district courts have such a
rule and the application of that rule has been upheld.

See e.g.

Nw. Bank & Trust Co. v. First Illinois Nat’l Bank, 354 F.3d 721,
725 (8th Cir. 2003) (upholding United States District Court for the
Souther District of Iowa’s rule requiring a concise statement of
material facts to accompany a motion for summary judgment); Ruiz
Rivera v. Riley, 209 F.3d 24, 27 (1st Cir. 2000) (holding the same
for the United States District Court for the District of Puerto
Rice).

As such, this Court will consider those statements as

“pleadings” pursuant to Federal Rule of Civil Procedure 56(c).

8

A.

Motions for Summary Judgment
This case was filed in this Court pursuant to diversity

jurisdiction.

Accordingly, West Virginia law must be applied to

determine how this Court should interpret the ROW and whether or
not it may grant a motion for summary judgment based on the terms
of the ROW in the context of this action.

Harbor Court Assocs. v.

Leo A. Daly Co., 179 F.3d 147, 153 (4th Cir. 1999) (“In this
appeal, we are sitting in diversity; therefore, our task ‘is to
rule upon state law as it exists and not to surmise or suggest its
expansion.’”) (quoting Burris Chemical, Inc. v. USX Corp., 10 F.3d
243, 247 (4th Cir. 1993)).

Under West Virginia law, the trial

court determines whether “the terms of an integrated agreement are
unambiguous and, if so, [ ] construe[s] the contract according to
its plain meaning.

In this sense, questions about the meaning of

contractual provisions are questions of law.”

Fraternal Order of

Police, Lodge No. 69 v. City of Fairmont, 468 S.E.2d 712, 715 (W.
Va. 1996).

The West Virginia Supreme Court, however, couched that

finding as follows:
However, when a trial court’s answers rest not on plain
meaning but on differential findings by a trier of fact,
derived from extrinsic evidence as to the parties’ intent
with regard to an uncertain contractual provision, [those
questions are left for the jury].
The same standard
pertains whenever a trial court decides factual matters
that are essential to ascertaining the parties’ rights in
a particular situation (though not dependent on the
meaning of the contractual terms per se). In these types
of cases, the issues are ordinarily fact-dominated rather
than law-dominated . . . .

9

Id. (citation omitted).
If the trial court finds that the contract is ambiguous, “the
ultimate resolution of it typically will turn on the parties’
intent. Exploring the intent of the contracting parties often, but
not always, involves marshaling facts extrinsic to the language of
the contract document. When this need arises, these facts together
with reasonable inferences extractable therefrom are superimposed
on the ambiguous words to reveal the parties’ discerned intent.”
Id. at 716, fn. 7.

“Contract language usually is considered

ambiguous where an agreement’s terms are inconsistent on their face
or where the phraseology can support reasonable differences of
opinion as to the meaning of words employed and obligations . . .
‘A contract is ambiguous when it is reasonably susceptible to more
than one meaning in light of the surrounding circumstances and
after applying the established rules of construction.’” Id. at 716
(citation omitted).

“‘The mere fact that parties do not agree to

the construction of a contract does not render it ambiguous.

The

question as to whether a contract is ambiguous is a question of law
to be determined by the court.’”

Id. at 717-18 (citing Syl. pt. 1,

Berkeley Co. Pub. Ser. Dist. v. Vitro Corp., 162 S.E.2d 189 (W. Va.
1968)).
1.

Use of McCrackens’ Private Road for Access to the Turley
Property

The ROW provides that Columbia has been granted “the right of
ingress, egress, and regress to and from the same . . . .”
10

ECF No.

3-1 at 2.

“The same,” however, directly follows the metes and

bounds description in the ROW. Thus, pursuant to the plain meaning
of the ROW language, Columbia may only use the McCrackens’ private
road for access to the McCrackens’ property.
On the other hand, the McCrackens have stated in their
briefings that they have allowed Columbia to “permissively” use
that road to access the Turley property through a locked gate. ECF
No. 32 at 2-3; ECF No. 7 at 2, ¶ 15.

The McCrackens do not state

that such use has only been granted while this litigation was
ongoing or after the interim consent order was entered in this
case.

To the contrary, the McCrackens state that they have “[i]n

the past . . . granted various individuals and entities, including
Columbia, permission to use the private road to access the Turley
property.”

ECF No. 32 at 2-3.

A trial court must “properly and thoroughly consider[ ] the
property’s historical use” in determining the scope of an access
easement.

Stover v. Milam, 557 S.E.2d 390, 396 (W. Va. 2001).

However, such historical use evidence has only been used where the
bounds of the right-of-way are not determinable.

Id.

Only then

will “the scope and purpose of the deed creating it, the situation
and use of the property, and the intent of the parties [ ] be
considered, so as to provide a reasonable, safe and convenient way
for the purposes for which it was intended.”

Id. (citing Syl. pt.

2, Palmer v. Newman, 112 S.E. 194 (W. Va. 1922); Jenkins v.

11

Johnson, 382 S.E.2d 334, 337 (1989) (per curiam) (“Where there is
no precise width to an express right-of-way, we have adopted the
view that the actual use made will control.” (other citations
omitted)).
Thus, in this case, where the “ingress, egress and regress”
language refers to a metes and bounds description, the historical
use of the property should not be considered.

Although, in this

case, the historical use is such that Columbia and others in the
past have enjoyed access to the Turley property by way of the
McCrackens’ private road, the actual use of the road does not
control. Although Columbia argues that the intent of the right-ofway agreements, taken together, was to provide seamless use and
access to the pipelines that were laid across several properties,
this Court cannot read such an intent from the plain meaning of the
contract.

This argument would be better suited for a prescriptive

easement claim, which Columbia has not made and specifically states
it is not making.

See ECF No. 36 at 5; see also Dorsey v. Dorsey,

153 S.E. 146, 146 (W. Va. 1930) (finding that “passage by virtue of
necessity as to one tract could not as matter of right extend such
easement to . . . other lands.”).

As such, this Court finds that

Columbia cannot be granted its requested declaratory relief as to
the use of the McCrackens’ private road to access the Turley
property. Thus, this Court must deny in part Columbia’s motion for
summary judgment as the ROW does not allow a declaration in

12

Columbia’s favor as to an access easement to the Turley property.
However, this Court also finds that the McCrackens’ claims must
also be dismissed as Columbia had permission to use the McCrackens’
private road to access the Turley property and thus, the McCrackens
do not have any claim for damages.
a.

Trespass

The parties have submitted in their concise statements of fact
and in the briefing of their motions that Columbia has used the
McCrackens’ private road to access the Turley property.

However,

the McCrackens have also stated that they have allowed Columbia to
use the road “permissively.”

“A trespasser is one who goes upon

the property or premises of another without invitation, express or
implied, and does so out of curiosity, or for his own purpose or
convenience, and not in the performance of any duty to the owner.”
Brown v. Carvill, 527 S.E.2d 149, 153 (W. Va. 1998).
“[u]nder

West

defendant’s

Virginia

conduct

must

law,

to

result

constitute
in

an

a

actual,

Further,

trespass,

the

nonconsensual

invasion of the plaintiff’s property, which interferes with the
plaintiff’s possession and use of that property.”

Rhodes v. E.I.

du Pont de Nemours & Co., 636 F.3d 88, 96 (4th Cir. 2011).
According to this precedent, this Court finds that Columbia
was not a trespasser when it used the McCrackens’ property to
access the Turley property. Thus, a genuine issue of material fact
does not exist as to the McCrackens’ claim of trespass as the

13

McCrackens have acknowledged their approval of Columbia’s use of
that road.

The trespass claim must therefore be dismissed.
b.

“A

Nuisance

private

nuisance

is

a

substantial

and

unreasonable

interference with the private use and enjoyment of another’s land.”
Booker v. Foose, 613 S.E.2d 94, 96 (2005) (citation omitted).
“‘[T]he term [‘nuisance’] is generally ‘applied to that class of
wrongs

which

arises

from

the

unreasonable,

unwarrantable

or

unlawful use by a person of his own property and produces such
material annoyance, inconvenience, discomfort, or hurt that the law
will presume a consequent damage.’”
Again,

the

McCrackens’

permission

Id. (citation omitted).

must

be

considered.

The

McCrackens have stated that they “permissively” allowed Columbia to
use the road on their property to access the Turley property.
Thus, Columbia’s use of the road cannot be found to be unreasonable
as Columbia had permission to do so.

Further, such use was not

unlawful as this Court has already found that it did not constitute
a trespass and the McCrackens have not alleged any other allegedly
unwanted use of the road.

Accordingly, this claim also must be

dismissed as a genuine issue of material fact does not exist.
c.

Breach of Contract

As noted by Columbia, the McCrackens did not plead a breach of
contract claim in their counterclaim.

As such, this Court cannot

grant summary judgment to the McCrackens on such a claim.

14

Because

this Court has found that the McCrackens cannot pursue their claims
against Columbia based on Columbia’s use of the McCrackens’ private
road, this Court will not grant any relief to the McCrackens and
thus denies the McCrackens’ motion for partial summary judgment.
2.

Placement of Pipeline Above Ground

The ROW states that Columbia has the “right to lay a 16" inch
pipe line . . . and maintain, operate, repair and remove said
line[ ] along a line which has been surveyed for the same over and
through [the McCrackens’] land . . . [and Columbia] may at any time
lay, maintain, operate, repair and remove a second line of pipe
alongside of the first line as herein provided . . . [and] also may
change the size of its pipes . . . .”

ECF No. 3-1 at 2.

A plain reading of that language reads in Columbia’s favor.
The ROW provides discretion to Columbia in maintaining the pipeline
on the McCrackens’ property which includes removing and repairing
the original pipeline. Further, the ROW provides that Columbia may
maintain a second line of pipe under the same guidelines as those
provided for the original pipeline. Thus, the McCrackens’ argument
that a second pipeline could not be laid is incorrect.
The McCrackens also make the argument that Columbia cannot lay
the pipe above ground but that the ROW only incorporated a pipeline
that

would

be

maintained

below

ground.

However,

the

ROW

specifically states that the pipeline may be maintained “over and

15

through” the McCrackens’ property.

A plain meaning of this term

would also be in Columbia’s favor.
Finally, the McCrackens argue that maintenance by Columbia
because of longwall mining was not intended by the original parties
to be incorporated in the ROW agreement because longwall mining had
not yet been used in Marshall County where the McCrackens’ property
is located.

To the contrary, there is evidence that longwall

mining had been used in West Virginia since 1911, as Columbia
points out in its briefing.

Citing West Virginia Culp v. Consol

Pennsylvania Coal Co., No. 87-1688, 1989 WL 101553 at *12 (W.D. Pa.
May 4, 1989).

Accordingly, given the breadth of the maintenance

term in the ROW and the presence of longwall mining at the time the
original parties entered the contract, this Court finds that
Columbia is within its rights under the ROW in taking certain
measures to maintain the pipeline at issue.
As there are no genuine issues of material fact as to the
placement of the pipeline above the ground, this Court finds that
Columbia’s requested relief for a declaratory judgment of its right
to place and maintain the additional temporary pipeline on the
McCrackens’ property should be granted.
3.

Columbia’s Claims for Breach of Contract, Nuisance, and
Trespass

Along with its request for declaratory relief, Columbia has
also made requests for damages pursuant to theories of breach of
contract, nuisance, and trespass.
16

This Court finds that Columbia

has valid claims as to breach of contract and trespass, but not as
to its nuisance claim.
a.

Breach of Contract

This Court finds that a breach of contract clearly occurred as
the McCrackens failed to allow Columbia to take protective measures
regarding the pipeline which this Court found was required pursuant
to the ROW.

In West Virginia, the elements of breach of contract

are (1) a contract exists between the parties; (2) a defendant
failed to comply with a term in the contract, and (3) damage arose
from the breach.

Patrick v. PHH Mortgage Corp., 937 F. Supp. 2d

773, 792 (N.D. W. Va. 2013).
not a contract existed.

The parties do not dispute whether or

This Court has in this order determined

how the terms of that contract should be applied to the issues that
have arisen between the parties.

Given the McCrackens’ initial

refusal to allow Columbia to access the property to perform
protective measures of its pipeline, there was a breach of a term
in the contract. Further, this Court finds that there were damages
which occurred because of that breach as Columbia had to undergo
this

litigation

and

an

elongation

of

the

completion

of

the

protective measures.
b.

Nuisance

Again, “[a] private nuisance is a substantial and unreasonable
interference with the private use and enjoyment of another’s land.”
Booker, 613 S.E.2d at 96.

“‘[T]he term [‘nuisance’] is generally

17

‘applied

to

that

class

of

wrongs

which

arises

from

the

unreasonable, unwarrantable or unlawful use by a person of his own
property and produces such material annoyance, inconvenience,
discomfort,
damage.’”

or

hurt

that

the

law

will

Id. (citation omitted).

presume

a

consequent

However, the West Virginia

Supreme Court has held that “‘[t]he crux of a nuisance case is
unreasonable land use’” and that inconvenience and outrage do not
support a finding that a private nuisance occurred.
(citation omitted).

Id. at 97

In this case, this Court cannot find that the

McCrackens were unreasonable in their land use.

The McCrackens

held the belief that they were not required to allow Columbia
access to the land based on the terms of the ROW.

Although this

Court has found favorably for Columbia as to the maintenance term
in the ROW, this Court does not believe that the McCrackens’ belief
to the contrary is unreasonable.
c.

Trespass

“A trespasser is one who goes upon the property or premises of
another without invitation, express or implied, and does so out of
curiosity, or for his own purpose or convenience, and not in the
performance of any duty to the owner.”

Brown, 527 S.E.2d at 153.

Further, “[u]nder West Virginia law, to constitute a trespass, the
defendant’s

conduct

must

result

in

an

actual,

nonconsensual

invasion of the plaintiff’s property, which interferes with the

18

plaintiff’s possession and use of that property.” Rhodes, 636 F.3d
at 96.
This

Court

finds

that

the

McCrackens

trespassed

upon

Columbia’s access to and use of the ROW in terms of Columbia’s
right to perform protective measures for the pipeline.

The

McCrackens blocked Columbia’s access, and damages would be similar
to those as for the breach of contract.

Those damages would

encompass those that occurred as a result of the McCrackens’
obstruction of Columbia’s implementation of protective measures and
the filing of this action.
Finally, as the McCrackens were not required to allow Columbia
to use their private road, the McCrackens’ initial refusal to allow
Columbia to use their road did not constitute a trespass, nuisance,
or breach of contract.
B.

Relief Granted
In

its

complaint,

Columbia

has

requested

as

relief

following:
a.
A declaration that the McCracken Right-of-Way
agreement permits Columbia to access the Turley Right-ofWay via the McCracken Right-of-Way.
b.
A declaration that the McCracken Right-of-Way
agreement permits Columbia to lay a plastic pipeline on
the surface of the property temporarily, and take other
such reasonable and necessary protective measures until
said pipeline may be safely buried.
c.
Grant Columbia . . . a permanent injunction, that
directs the Defendants and their agents to cease
interfering with Columbia’s lawful property rights,
including but not limited to (i) Columbia’s right to take
measures to protect Line 1360 before, during and after
the mining under Line 1360 and the McCracken Right-of19

the

Way; (ii) Columbia’s right to lay a temporary plastic
pipeline on the surface of the property and take other
such protective measures until said pipeline may be
safely buried; and (iii) Columbia’s right to access the
Turley Right-of-Way via the McCracken Right-of-Way in
order to maintain, operate, repair, and remove Line 1360;
d.
Award Columbia compensation for any and all damages
to the McCracken Right-of-Way and to Line 1360 incurred
as a result of Defendants’ breaches of the McCracken
Right-of-Way agreement and willful and wanton behavior,
including, but not limited to, the costs incurred in
prosecuting this action, prejudgment interest, postjudgment interest, and punitive damages in an amount
sufficient to punish Defendants for their knowing and
willful misconduct and to deter Defendants and others
from similar conduct in the future; and
e.
Award Columbia all other and further relief to which
it is entitled at law or in equity.
ECF No. 1 at 10-11.
1.

Declarations

Given this Court’s reading of the ROW and this Court’s finding
regarding the motions for summary judgment, this Court finds that
Columbia’s declaratory judgment requests should be granted in part
and denied in part.

This Court has found that Columbia has the

authority, under the ROW, to access the McCracken property in order
to take protective measures for its pipeline.

However, this Court

has found that Columbia is not permitted to access the Turley
property by way of the McCrackens’ private road under the ROW.
Thus, this Court now makes the following declaration:
The McCracken right-of-way agreement permits Columbia to
lay a plastic pipeline on the surface of the property
temporarily, and take other such reasonable and necessary
protective measures until said pipeline may be safely
buried.

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2.

Permanent Injunction

This Court has found a request for a permanent injunction by
Columbia in its initial briefing of its motion for a temporary
restraining order or preliminary injunction.

Further, this Court

found a similar request in Columbia’s complaint.

However, an

injunction of any kind has not been entered by this Court because
the parties had entered into an interim consent order.

Further,

Columbia had only requested a preliminary injunction at that time
or a temporary restraining order, neither of which has the more
serious implications that a permanent injunction would entail.
A plaintiff seeking a permanent injunction must satisfy a
four-factor test before a court may grant such relief. A plaintiff
must demonstrate:
(1) that it has suffered an irreparable injury;
(2) that remedies available at law, such as monetary
damages, are inadequate to compensate for that injury;
(3) that, considering the balance of hardships between
the plaintiff and defendant, a remedy in equity is
warranted; and
(4) that the public interest would not be disserved by
a permanent injunction.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (citing
Weinberger v. Romero—Barcelo, 456 U.S. 305, 311–313 (1982); Amoco
Production Co. v. Gambell, 480 U.S. 531, 542 (1987)).

This Court

finds that those elements have not been met at this time.
First, the parties were able to come to an amicable agreement
early on in this case pursuant to the parties’ interim consent
order.

Thus, it does not appear that Columbia has suffered
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irreparable injury.

The McCrackens, although possibly not as

amicable at the beginning, have worked with Columbia since then
which can be seen based on the status report that was filed by
Columbia.

Additionally, at this time, Columbia has essentially

obtained the same relief through this Court’s declaration of the
parties’ rights under the ROW.

Further, Columbia still has the

option of monetary damages. Accordingly, this Court finds that the
first and second elements are not met at this time and thus, a
permanent injunction should not be granted.
3.

Monetary Damages

As to Columbia’s request for monetary damages, this Court
finds that a hearing on Columbia’s request for monetary damages
would be beneficial in order to determine what relief should be
granted to Columbia given the findings set out in this order.

As

such, this Court will keep this action open for the purpose of
determining whether or not monetary relief should be ordered and
taking up any other issues that remain.
V.

Conclusion

For the reasons stated above, the plaintiff’s motion for
summary judgment is GRANTED IN PART and DENIED IN PART.

Further,

the defendants’ motion for partial summary judgment is DENIED.
Additionally, the parties are DIRECTED to appear by counsel
for a hearing to take up any issues that remain, including the
issuance of any monetary damages that are due to plaintiff, on

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October 27, 2014 at 1:15 p.m. in the chambers of Judge Frederick P.
Stamp, Jr., Federal Building, 1125 Chapline Street, Wheeling, West
Virginia 26003.

This hearing will be held in place of the status

and scheduling conference that was scheduled for the same date and
time.

If the parties are able to come to an agreement as to

damages and all remaining issues before this hearing, the parties
are DIRECTED to inform this Court of such an agreement so that this
Court may remove this case from the active docket.
Further, the Court will permit those out-of-town attorneys
having their offices further than forty (40) miles from the point
of holding court to participate in the conference by telephone.
However, any such attorney shall advise the Court as soon as
possible prior to the conference of his or her intention to
participate by telephone and shall (1) inform all counsel of his or
her appearance by telephone; (2) confer with other out-of-town
attorneys to determine if they wish to appear by telephone; (3)
advise the Court of the name of the attorney who will initiate the
conference call and all such attorneys appearing by telephone; and
(4) initiate a timely conference telephone call with such attorneys
to

the

Court

conference.

at

304/233-1120

at

the

time

of

the

scheduled

If the attorneys cannot reach agreement as to the

initiator of the call, the Court will make that determination.
IT IS SO ORDERED.

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The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

October 6, 2014

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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