Chevron Pipe Line Co. v. De Roest

• Jurisdiction: Oregon
• Parties: , 128 Oil & Gas Rep. 568 CHEVRON PIPE LINE CO., a Delaware corporation, Appellant, v. Donald DE ROEST, Respondent, John Does 1 Through 10 and Corporations A Through Z, Defendants. 900561; CA A72903.
• Citation: 122 Or.App. 440,858 P.2d 164
• Court: Oregon Court of Appeals
• Decision Date: 25 August 1993

Page 164

858 P.2d 164

122 Or.App. 440, 128 Oil & Gas Rep. 568

CHEVRON PIPE LINE CO., a Delaware corporation, Appellant, v. Donald DE ROEST, Respondent John Does 1 Through 10 and Corporations A Through Z, Defendants.

900561; CA A72903.

Court of Appeals of Oregon.

Argued and Submitted Jan. 8, 1993.

Decided Aug. 25, 1993.

Stephen R. Thomas, Boise, ID, and John H. Kottkamp, Pendleton, argued the cause for appellant. With them on the briefs were Moffatt, Thomas, Barrett, Rock & Fields, Chartered, Boise, ID, and Kottkamp & O'Rourke, Pendleton.

George W. Kelly, Eugene, argued the cause for respondent. With him on the brief was Silven, Schmeits & Vaughan, Baker.

Before ROSSMAN, P.J., and DE MUNIZ and LEESON, JJ.

ROSSMAN, Presiding Judge.

In this action for a permanent injunction, plaintiff, the owner and operator of an interstate petroleum products pipe line that crosses defendant's property in Baker City, seeks an order enjoining defendant from placing further fill material over the pipe line and requiring defendant to remove fill material and heavy equipment that he has placed there, allegedly in violation of plaintiff's easement. The trial court denied plaintiff's request for an injunction and entered judgment for defendant. Plaintiff appeals. We review de novo, ORS 19.125(3), and affirm.

In 1950, defendant's three predecessors conveyed a 16.5-foot easement across their land to plaintiff's predecessor, the Salt Lake Pipe Line Company, for the purpose of transporting various liquid petroleum products from a refinery in Salt Lake City, Utah, to Spokane, Washington, and intermediate points. The instruments conveying the easements are substantially identical. They grant to plaintiff

"the right of way from time to time to lay, construct, reconstruct, replace, renew, repair, maintain, operate, change the size of, increase the number of, and remove pipe lines and appurtenances thereof, for the transportation of oil, petroleum, gas, gasoline, water or other substances, or any thereof, and to erect, install, maintain, operate, repair, renew, power lines and appurtenances thereof on a single line of poles or underground, as Grantee from time to time and place to place may elect, with the right of ingress and egress to and from the same, over and through, under and along that certain parcel of land situated in Baker County, State of Oregon * * *."

The conveyances reserve to defendant's predecessor

"the right to use and enjoy said premises, provided that Grantor shall not construct or maintain the whole or any part of any structure on said strip of land or in any manner impair or interfere with the present or prospective exercise of any of the rights therein granted."

Plaintiff, a wholly owned subsidiary of Chevron USA, succeeded to the easement rights of Salt Lake Pipe Line Company. Plaintiff is a common carrier and subject to the federal Department of Transportation tariffs and regulations promulgated by the Secretary of Transportation pursuant to the Hazardous Liquid Pipeline Safety Act of 1979. Plaintiff must also comply with the federal Environmental Protection Act and the Occupational Safety and Health Act.

Defendant acquired the property in two parcels, in 1976 and 1978, for the purpose of parking equipment on it. At the time, the property sloped downhill toward the east, from Highway 7 to the Powder River. The Powder River is a navigable waterway subject to the jurisdiction of the Coast Guard. Defendant testified that the slope of the land made it less than desirable for his intended purpose, and from the beginning of his ownership he has received fill material of various kinds, consisting largely of dirt, concrete and asphalt. Over the years, he has filled the upper portion of his property so that it is approximately level with Highway 7. He has created two terraces that intersect the slope at right angles. At the edge of the higher terrace, plaintiff's pipe line is covered to a depth of approximately 22.5 feet. At the edge of the lower terrace, the depth is approximately 10.5 feet. Before defendant began to fill his property, the average depth of the pipe line was 1.5 to 3.5 feet below the surface. Defendant has never sought plaintiff's permission to fill the property and did not believe that he was required to do so.

The portion of the pipe line that crosses defendant's property pursuant to the easement enters the property at the high point and travels 250 feet down the slope, leaving the property as it passes under the Powder River. The pipe is eight inches in diameter and made of one-quarter-inch-thick steel with asphaltic wrapping. Products transported through the line include diesel fuel, refined gases, stove oil and aviation fuel. Centrifugal pumps drive the products through the pipe line under a pressure of 950 pounds per square inch and at a rate of about 58,800 gallons per hour. Plaintiff can automatically shut down the pipe line pumps in about 15 minutes. Product then remaining in the pipe line on defendant's property continues to produce about 300 pounds per square inch of pressure. In the event of a leak, the pressure would force product out of the pipe until the leak is stopped or the 58,800 gallons of product remaining in the pipe line is emptied.

Plaintiff's agents inspect the length of the pipe line on foot, by motor vehicle and by airplane. One agent, Martoccia, testified that, between 1977 and 1986, plaintiff patrolled the pipe line by airplane twice each month. Since 1986, there has also been a surface patrol. In April, 1977, plaintiff's "Individual Pipe Line Patrol Flight Log" contains a reference to activity near the pipe line in the vicinity of defendant's property. Plaintiff's "Aerial Patrol Report" for April 7 and 8, 1980, reports "equipment working leveling what looks like a spot for a building." Plaintiff's "Bi-Weekly Line Rider Report" for August 4, 1987, refers to fill being placed over the pipe line on defendant's property to a depth of ten feet. Similar reports of activity are contained in reports made in 1987, 1988 and 1989. Definitely by 1987, plaintiff was aware that defendant had parked large equipment on the easement and had placed fill on it, including chunks of asphalt and concrete. In April, 1988, Watts, plaintiff's inspector, spoke to a man in defendant's shop building and cautioned him about activity on the easement.

George Adams, an independent right-of-way specialist working exclusively for plaintiff since February, 1988, testified that he visited defendant in September, 1990, to express plaintiff's concern about defendant's equipment and fill on the easement. He testified that he and defendant discussed the terms of the easement.

On October 12, 1990, plaintiff's attorney wrote to defendant demanding that defendant remove fill material, so that the pipe line is not deeper than 10 feet below the surface, and that defendant stop adding fill material and parking equipment on the easement. Defendant has said that he will not add more fill, but has not agreed to remove equipment or existing fill. He testified that to remove fill would leave a trench through his property that would permit erosion over time due to melting snow.

Plaintiff contends that the presence of the fill and equipment "impairs" plaintiff's access to the pipe line and therefore violates the easement's restriction on defendant's use of the property. Plaintiff now asks that defendant be required to stop parking equipment on the easement and to remove the fill to a depth of not more than five feet above the pipe line. Department of Transportation regulations do not prescribe a maximum cover.

The trial court denied plaintiff's request for an injunction:

"IT IS HEREBY ORDERED the Plaintiff is denied any and all relief as prayed for in Plaintiff's Complaint for Injunctive Relief and Plaintiff shall take nothing thereby excepting only that Defendant is permanently enjoined from interfering with any excavation Plaintiff may hereafter undertake on that portion of Plaintiff's easement which crosses Defendant's property upon which Defendant has deposited fill material to the extent that Plaintiff is required to place excavated material on Defendant's property as necessary to comply with applicable laws, rules, and regulations concerning trenching requirements."

In plaintiff's view, and the dissent's, the placement of fill on the pipe line is, per se, an interference with plaintiff's right to install, replace and repair the pipe and, accordingly, a violation of the easement. Both pay lip service to, but side step the rule that the rights of the dominant and servient tenants are relative to each other, not absolute. In Minto v. Salem Water Etc. Co., 120 Or. 202, 212, 250 P. 722 (1926), the court said:

"The right of the easement owner, and the right of the land owner, are not absolute, irrelative, and uncontrolled, but are so limited, each by the other, that there may be a due and reasonable enjoyment of both."

As the trial court said, to interpret the easement as creating a literal injunction of any impairment of plaintiff's access to the pipe line

"would require a pristine path 16 1/2 feet wide stretching from Salt Lake City to Spokane. It would mark or prevent corn fields, airports, driveways, woodlots, cities, towns, any proposed use of servient land predated by the easement which would create some impairment to Plaintiff's use of the easement. If Plaintiff's argument is correct, and its right to free exercise of the easement cannot be impaired, it could not be required to thrash through seven foot tall corn stalks to work within the easement."

We conclude that the trial court correctly rejected an absolute restriction on the servient tenant's right to use the property and instead considered whether, in view of all the circumstances, the use to which the servient tenement proposes to subject the easement is a reasonable one and will not deprive the easement owner of the degree of use...