191 F.3d 552 (4th Cir. 1999), 98-2091, Columbia Gas Transmission Corp. v. Drain

Docket Nº:98-2091
Citation:191 F.3d 552
Party Name:COLUMBIA GAS TRANSMISSION CORPORATION, Plaintiff-Appellee, v. DEANA DRAIN, Defendant-Appellant.
Case Date:September 08, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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191 F.3d 552 (4th Cir. 1999)



DEANA DRAIN, Defendant-Appellant.

No. 98-2091

United States Court of Appeals, Fourth Circuit

September 8, 1999

Argued: March 3, 1999

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COUNSEL ARGUED: Paul Joseph Harris, NATIONAL PROPERTY RIGHTS CENTER, Richmond, Virginia, for Appellant. Tamara Jean DeFazio, FURBEE, AMOS, WEBB & CRITCHFIELD, Fairmont, West Virginia, for Appellee. ON BRIEF: Kenneth R. Miller, FURBEE, AMOS, WEBB & CRITCHFIELD, Fairmont, West Virginia; Harry Clair Bruner, Jr., COLUMBIA GAS TRANSMISSION CORPORATION, Charleston, West Virginia, for Appellee.

Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.

Vacated and remanded by published opinion. Judge Luttig wrote the majority opinion, in which Judge Hamilton joined. Judge Ervin wrote an opinion concurring in the judgment.


LUTTIG, Circuit Judge:

Deana Wingfield Drain appeals from the judgment of the United States District Court for the Northern District of West Virginia granting Columbia Gas Transmission Corporation a declaration that it is entitled to a fifty-foot easement over her property and a permanent injunction prohibiting her from encroaching on that easement. Finding that the lower court lacked subject matter jurisdiction over Columbia's claim, we vacate the judgment and remand with instructions to dismiss.


Deana Wingfield Drain owns .44 acres in Randolph County, West Virginia. She obtained the property by deed from her father, Oliver Leroy Wingfield, in 1977.

In 1950, Columbia Gas, through its predecessor-in-interest Cumberland and Allegheny Gas Company, purchased from Mr. Wingfield's predecessors-in-interest, members of the Currence family, a right-of-way to lay, maintain, operate, repair, and remove an eightinch gas pipeline under the subject property. The right-of-way agreement specifies the length of the right-of-way as "1139 feet or 69 rods," for which Cumberland and Allegheny compensated the grantors at a rate of $1.50 per rod per family member. The agreement does not specify the width of the right-of-way. After securing the right-ofway, Columbia's predecessor-in-interest installed an underground gas transmission pipeline along the property as contemplated by the agreement.

In 1965, Mr. Wingfield, who had subsequently purchased the land, installed a cement block foundation and constructed a shed six inches from Columbia's gas line. There the structure remained for nearly

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thirty years without prompting any objection from Columbia. Over that same period, Columbia also did not object to a number of similar encroachments by nearby property-owners at other locations along the line. In August 1992, Ms. Drain began work to install a cement block foundation for a modular home along Columbia's right-of-way. The foundation was within seven and one-half feet of the pipeline. Although Columbia had employees on the property while the foundation was being dug, it again offered no objection. By October 1992, the work had been completed and the modular home installed.

Six months later, in April 1993, Columbia informed Ms. Drain that it owned a fifty-foot easement (twenty-five feet on either side) along the right-of-way, and that her modular home encroached on that easement. On June 27, 1994, the company informed Ms. Drain for the first time that she would have to move her modular home to a location twenty-five feet from the pipeline, and several days later threatened legal action if she refused to do so. On December 6, 1994, Columbia Gas brought an action in federal district court seeking a declaration that under West Virginia law and federal regulations the right-of-way agreement entitled it to a fifty-foot easement over the Drain property, and preliminary and permanent injunctions ordering Ms. Drain to move her home and shed twenty-five feet from the pipeline and prohibiting her from conducting any further construction on the pipeline or otherwise interfering with Columbia's claimed easement.

In July 1995, Ms. Drain did move her home and shed from the easement, but also filed an Answer and Counterclaim to the complaint. In her answer, Ms. Drain raised both a challenge to the court's jurisdiction and a number of defenses on the merits. In her counterclaim, she sought declaratory and injunctive relief and damages pursuant to 42 U.S.C. § 1983, on the grounds that recognition of a fiftyfoot easement would result in an unconstitutional taking of her property.

The district court concluded that West Virginia law governed the question of the easement's width and that under that state's law Columbia was entitled by virtue of its express agreement to a "reasonably necessary" easement, which after a bench trial the court determined to be fifty feet. The district court granted Columbia the permanent injunction and declaratory relief it sought on these state law grounds, while exercising its equitable powers to order Columbia to pay Ms. Drain's house-moving expenses, and held that there had been no unconstitutional taking of Ms. Drain's property. Ms. Drain appeals.


Drain renews before this court her argument that the district court lacked subject matter jurisdiction over what she claims is nothing more than a standard state law action to enforce an easement over her property. The district court, after noting that it could not hear what it termed a "typical state court action . . . absent some basis for Federal jurisdiction," and before resolving that complaint on purely state law grounds, identified the requisite basis for federal jurisdiction not in the statute pursuant to which the action was brought, the Natural Gas Pipeline Safety Act, 49 U.S.C. § 60101 et seq.,1 but rather through "a natural extension of the Court's jurisdiction" under a different federal statute, the Natural Gas Act, 15 U.S.C. § 717f(h). Because neither the Natural Gas Pipeline Safety Act nor the Natural Gas Act, read separately or, as appellee would have us do, "in pari materia," creates federal-question jurisdiction over this quintessential state law claim, and because we can

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find no other basis for the district court's jurisdiction, we vacate the judgment and remand with instructions to dismiss.


In its action for injunctive and declaratory relief, Columbia argued that jurisdiction for its claims lay under the Natural Gas Pipeline Safety Act. That act, intended as its title suggests to ensure the safe functioning of natural gas pipelines and facilities, imposes certain safety obligations on pipeline operators and empowers the Secretary of Transportation to issue regulations establishing minimum safety standards. The Act also authorizes the Attorney General, on behalf of the Secretary of Transportation, to bring civil actions to enforce the provisions of the Act or regulations prescribed thereunder, id. § 60120, and private persons to bring actions in federal district court to enjoin their violation, id. § 60121(a). Thus, it is clear that the Natural Gas Pipeline Safety Act does create a cause of action -to enjoin violations of or compel compliance with its terms-and federal jurisdiction to hear it...

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