COLUMBIA GAS TRANSM. CORP. v. LARGE

No. 92 CV 91394.

63 Ohio Misc.2d 63 (1992)

COLUMBIA GAS TRANSMISSION CORPORATION v. LARGE et al.; Scott Construction Company et al.

Court of Common Pleas of Ohio, Licking County.

Decided October 2, 1992.


Attorney(s) appearing for the Case

Porter, Wright, Morris & Arthur, William M. Todd, Randall W. Knutti and R. Leland Evans; and Harry C. Bruner, Jr., for plaintiff.

Adam Vernau and A. Terrance Treneff, for defendants Michael A. Large and Janice Large.

Joseph F. Castner, for third-party defendant Scott Construction Company.

Richard M. Van Winkle, for third-party defendant Layton Excavating, Inc.


JON R. SPAHR, Judge.

This matter came on for consideration upon the motion for summary judgment filed herein by the plaintiff Columbia Gas Transmission Corporation ("TCO") on July 10, 1992, and upon the motion for summary judgment filed herein by the defendants Michael A. Large and Janice Large, also on July 10, 1992. Plaintiff filed a memorandum contra defendants' motion on July 24, 1992, and defendants filed a memorandum contra plaintiffs motion on August 4, 1992. On August 17, 1992, plaintiff filed a reply to defendants' memorandum contra.

This case involves a right-of-way owned by plaintiff TCO which it acquired from its predecessors in interest. The right-of-way grants to TCO the right to lay, maintain, operate, repair, replace and remove a pipeline or pipelines over and through the land now owned by the Larges. The right-of-way agreements, originally executed in 1919 and 1948, though duly and properly recorded, fail to state the width of the grant. The Larges, with at least constructive, if not actual, notice, installed an in-ground swimming pool approximately seven feet from the pipeline (known as the K-32 pipeline), which is owned and operated by TCO. TCO claims that its easement extends twenty-five feet on either side of the pipeline, or fifty feet total, and, therefore, installation of the swimming pool approximately seven feet from the pipeline constitutes an encroachment on said easement. TCO asks this court for an injunction ordering that the pool be moved and a declaration that TCO's right-of-way extends twenty-five feet on each side of its pipeline.

TCO claims that the fifty-foot width is reasonable and therefore proper. In support of its position, TCO relies heavily upon Roebuck v. Columbia Gas Transm. Co. (1977), 57 Ohio App.2d 217, 11 O.O.3d 256, 386 N.E.2d 1363. In Roebuck, the Shelby County Court of Appeals found that where no specified width is mentioned in a grant, the same should be determined by what is reasonably necessary and convenient for the purposes for which the easement was originally granted. Roebuck, at 224, 11 O.O.3d at 260, 386 N.E. 2d at 1368. The Roebuck court found a fifty-foot wide easement (twenty-five feet on either side of a pipeline) to exist where the grant was almost identical to the grant here, and where the need to maintain, operate and repair the pipeline was also similar.

The defendants, while acknowledging Roebuck's existence and pointing out, quite correctly, that it is not precedent in Licking County, fail to explain to this court why Roebuck was not correctly decided or why it is distinguishable from the case at bar. Instead, they cite Ashland Pipe Line Co. v. Lett (Apr. 11, 1990), Ashland App. No. CA-942, unreported, 1990 WL 52505, and claim that it is "the only case which is precedent" and that it is "on all fours with the case at bar." The court finds that Lett is not controlling authority pursuant to Rule 2(G) of the Supreme Court Rules for the Reporting of Opinions, and, in addition, that it is not on all fours with the case at bar.

In Lett, only a twenty-five-foot-wide strip of land was cleared and subsequently maintained by the gas company on the land owned by the Letts. Here, defendants do not claim that TCO has maintained an area of less than fifty feet wide anywhere on their property, but that TCO has maintained areas measuring less than fifty feet wide elsewhere along the K-32 pipeline. This assertion, even if true, is irrelevant. The fact that plaintiff may or may not have enforced its easement to its fullest width elsewhere has absolutely no bearing at all on whether it may enforce its easement to its fullest width on the Larges' property. In Lett, the gas company acquiesced in a narrower width than it later claimed. Here no such acquiescence is present and the court finds, as did the Roebuck court, that a strip of land, twenty-five feet on either side of the pipeline is reasonably necessary and convenient and, therefore, proper.

For the foregoing reasons, TCO is hereby GRANTED its motion for summary judgment and this court declares that TCO's easement extends twenty-five feet on each side of the pipeline known as K-32. The defendants are hereby ordered to move the pool so that it no longer encroaches upon plaintiff's easement.

Judgment accordingly.


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