544 F.3d 618 (6th Cir. 2008), 07-3632, Andrews v. Columbia Gas Transmission Corp.

Docket Nº:07-3632.
Citation:544 F.3d 618
Party Name:Donald S. ANDREWS; Jill Beeler Andrews, Plaintiffs-Appellants, v. COLUMBIA GAS TRANSMISSION CORPORATION, Defendant-Appellee.
Case Date:October 10, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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544 F.3d 618 (6th Cir. 2008)

Donald S. ANDREWS; Jill Beeler Andrews, Plaintiffs-Appellants,



No. 07-3632.

United States Court of Appeals, Sixth Circuit.

October 10, 2008

Submitted: Sept. 16, 2008.

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John P. Lavelle, Lavelle & Associates, Athens, Ohio, Gregory D. Brunton, Reminger & Reminger Co. L.P.A., Columbus, Ohio, for Appellee.

Donald S. Andrews, Jill Beeler Andrews, Granville, Ohio, pro se.

Before: GUY, BATCHELDER, and McKEAGUE, Circuit Judges.


McKEAGUE, Circuit Judge.

This diversity case involves what some consider to be a “ [l]ocal David" standing up to an “ out-of-state corporate Goliath." 1 Plaintiffs Donald S. Andrews and Jill Beeler Andrews appeal the district court's determination that defendant Columbia Gas Transmission Corporation (“ Columbia Gas" ) is entitled to clear a fifty-foot right of way around each of its natural gas pipelines running through plaintiffs' property. For the reasons stated below, we AFFIRM.


A. Factual Background

The basic facts underlying this litigation are largely undisputed. In 1947, Ruby W. Davies owned the piece of land in Granville Township, Licking County, Ohio, where plaintiffs now reside. In January of 1947, she granted to The Ohio Fuel Gas Company (“ Ohio Fuel" ), and its successors and assigns, an easement 2“ to lay a pipe line over and through the premises hereinafter described, and to maintain, operate, repair, replace and remove same." JA 52. She also granted Ohio Fuel the right to “ lay, maintain, operate, repair, replace and remove other lines of pipe at any points on said premises upon the payment of like consideration" and the right of “ ingress and egress to and from the same" over and across the property. Id. Ohio Fuel agreed to “ pay any damages which may arise to crops and fences from the laying, maintaining, operating and final removal of said pipe line." Id. The agreement further provided that “ [t]he Grantor ... may fully use and enjoy said premises except for the purpose hereinbefore granted to the Company." Id. The agreement did not specify the width of the easement. It was recorded in the official land records of Licking County, Ohio.

Pursuant to the agreement, Ohio Fuel installed two large high-pressure underground natural gas transmission pipelines through the property. The first, Line K-170, is sixteen inches in diameter and was installed in 1947. The second, Line K-205, is twenty-four inches in diameter and was installed in 1957. The two pipelines run roughly parallel to each other, approximately thirty feet apart. By virtue of a

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corporate merger, Columbia Gas succeeded to Ohio Fuel's interest in the right of way and has continued to operate and maintain the pipelines on the property.

The property has changed hands several times over the past half century. In the late 1960s, then-owner Jan Baltus built a house on it. He also planted pine trees on the hillside behind the house, both for aesthetics and to prevent the hillside from eroding. Unbeknownst to Baltus, he planted the trees within twenty-five feet of Line K-170. JA 490-91. In March 2000, plaintiffs bought the property with notice of the 1947 right of way agreement. By then, the pine trees had matured. According to plaintiffs, their decision to purchase the property was motivated in large part by the rural setting and the hillside landscaping.

Until 2004, Columbia Gas made no efforts to clear a right of way around its pipelines on plaintiffs' property. In June 2004, a work crew informed Donald Andrews that the location of the pipeline required them to remove a stand of the pine trees on his property. Thereafter, Columbia Gas claimed the right to remove the trees and to maintain a right of way totaling approximately eighty feet: twenty-five feet on each side of the centerline of each of the pipelines, and the thirty feet between the two pipelines. In a letter dated September 29, 2004, Columbia Gas informed plaintiffs that it would begin clearing its right of way. Another letter dated April 25, 2005 informed them that the company planned to enter the property and remove the trees.

B. Procedural History

On April 28, 2005, plaintiffs, acting pro se, sued Columbia Gas in the Licking County Court of Common Pleas.3 They sought declaratory and injunctive relief and damages in the event that Columbia Gas removed the trees. Columbia Gas timely removed the action to the United States District Court for the Southern District of Ohio based on diversity jurisdiction. It also filed a counterclaim seeking declaratory and injunctive relief and damages for breach of contract. With the parties' consent, the case was referred to a magistrate judge for disposition under 28 U.S.C. § 636(c).

The magistrate judge entered a preliminary pretrial order on July 1, 2005. The deadline to amend pleadings was August 15, 2005. On January 23, 2006, plaintiffs filed a motion requesting additional time to serve a jury demand. The magistrate judge denied plaintiffs' request. Following discovery, Columbia Gas moved for summary judgment. The magistrate judge denied that motion as well, and the case proceeded to a bench trial.

After trial, the magistrate judge entered judgment in favor of Columbia Gas. He relied heavily on the testimony of two witnesses: Timothy Seibert and Paul Hollinger. Seibert was a long-time Columbia Gas employee and Operations Team Leader for the distribution area that included plaintiffs' property. He was responsible for overseeing the inspection and maintenance of the pipelines running through plaintiffs' property. Hollinger was an investigator for the Public Utilities Commission of Ohio (“ PUCO" ), the state agency responsible for overseeing natural gas transmission lines. Based on the testimony of Seibert and Hollinger, the magistrate judge concluded that a fifty-foot right of way for each pipeline was “ necessary and convenient and consistent with the language of the 1947 Davies easement." JA 455. He also declined

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to apply the doctrines of laches, estoppel, or waiver, noting that those doctrines do not apply to expressly granted easements under Ohio law. Finally, the magistrate judge concluded that plaintiffs were not entitled to compensation for removal of the trees because the right of way agreement only provided recovery for damage to crops and fences. Plaintiffs filed a timely motion to alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, which the magistrate judge denied. This timely appeal followed.4


Plaintiffs make four arguments on appeal. First, they contend that the magistrate judge incorrectly construed the right of way agreement as granting Columbia Gas a fifty-foot easement to operate and maintain each of its pipelines on plaintiffs' property. Second, they argue that the doctrines of laches, estoppel, and waiver, as well as the statute of limitations, precluded Columbia Gas from clearing the right of way forty years after the trees were planted. Third, they maintain that they are entitled to damages for the removed trees.5 Finally, plaintiffs challenge the district court's denial of their motion for additional time to serve a jury demand.

A. Applicable Law

Because Columbia Gas removed this matter to a federal district court sitting in Ohio, we must apply Ohio choice of law rules to determine the substantive law governing plaintiffs' state claims. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In Ohio, an easement grant is a contract for purposes of its construction. Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146, 150 (Ohio 1978). Absent an effective choice of law provision, Ohio courts apply the law of the state with the most significant relationship to the contract.6RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 188; Ohayon v. Safeco Ins. Co. of Ill., 91 Ohio St.3d 474, 747 N.E.2d 206, 220 (Ohio 2001). Ohio clearly has the most significant relationship to the right of way agreement at issue here-it was the place of contracting, performance, and negotiation of the agreement, as well as the location of its subject matter and plaintiffs' residence. Importantly, both parties have also assumed that Ohio law is controlling. Ohio law therefore governs our interpretation of the right of way agreement.

The Federal Rules of Civil Procedure govern plaintiffs' jury demand claim. See Hanna v. Plumer, 380 U.S. 460, 471-72, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965).

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B. Standard of Review

We review a district court's determination of state law in diversity cases de novo. Salve Regina Coll. v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991); see also United States v. Dedman, 527 F.3d 577, 584 (6th Cir.2008). In determining the substance of state law, we are bound by decisions of the state's highest court, unless that court would overrule its decisions on similar facts. Kurczi v. Eli Lilly & Co., 113 F.3d 1426, 1429 (6th Cir.1997). Where the high court has not spoken, our task is to make the best prediction of what the state court would do if confronted with the question. Combs v. Int'l Ins. Co., 354 F.3d 568, 577 (2004). State appellate court decisions are generally authoritative, “ absent a strong showing that the state's highest court would decide the issue differently." Kurczi, 113 F.3d at 1429.

We review a district court's legal conclusions following a bench trial de novo. Davies v. Centennial Life Ins. Co., 128 F.3d 934, 938 (6th Cir.1997). We will not disturb a...

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