Equitrans, L.P. v. 0.56 Acres More or Less of Permanent Easement Located in Marion Cnty.

• Decision Date: 18 November 2015
• Docket Number: Civil Action No. 1:15CV106
• Parties: Equitrans, L.P., a Pennsylvania limited partnership, Plaintiff, v. 0.56 Acres More or Less of Permanent Easement Located in Marion County, West Virginia, Jeffery J. Moore and Sandra J. Moore, Defendants.
• Court: U.S. District Court — Northern District of West Virginia

145 F.Supp.3d 622

Equitrans, L.P., a Pennsylvania limited partnership, Plaintiff,

v.0.56 Acres More or Less of Permanent Easement Located in Marion County, West Virginia, Jeffery J. Moore and Sandra J. Moore, Defendants.

Civil Action No. 1:15CV106

United States District Court, N.D. West Virginia.

Signed November 18, 2015

David K. Hendrickson, Hendrickson & Long, Charleston, WV, for Plaintiff.

Kenneth E. Webb, Jr., Bowles, Rice, McDavid, Graff & Love, Charleston, WV, for Defendants.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS THE COMPLAINT AND GRANTING PLAINTIFF'S MOTION TO DISMISS THE COUNTERCLAIMS

FREDERICK P. STAMP, JR.

, UNITED STATES DISTRICT JUDGE

This is a condemnation case arising from a prior civil action between defendants, Jeffery and Sandra Moore (“the Moores”), and the plaintiff, Equitrans L.P. (“Equitrans”). In that underlying civil action, Equitrans held a right-of-way over the Moores' property to construct and maintain a natural gas pipeline. The Moores sued Equitrans, claiming that it built and maintained portions of the pipeline outside of the right-of-way, thereby breaching the right-of-way agreement and trespassing on the Moores' property. After a trial, a jury found that two portions of the pipeline violated the right-of-way agreement or were trespassing. This Court stayed a determination on whether to enter an ejectment order.

Equitrans then filed this action under 15 U.S.C. § 717f(h)

to condemn a right-of-way through the portions of the Moores' property it was trespassing on. The Moores filed an answer, counterclaims, and a motion to dismiss the complaint for failure to state a claim. Equitrans then filed a motion to dismiss the counterclaims. For the following reasons, this Court denies the Moores' motion to dismiss the complaint and grants Equitrans' motion to dismiss the counterclaims.

I. Background

In 1960, Equitrans entered into a right-of-way agreement with the Moores to build a pipeline under a portion of their property (“the 1960 right-of-way”). In 2012, the Moores sued Equitrans claiming that approximately 700 feet of the pipeline was built outside of the 1960 right-of-way (hereinafter referred to as “the underlying civil action”). Equitrans maintained that it constructed all portions of the pipeline within the 1960 right-of-way. Following a trial, a jury found that Equitrans' placement of two portions of the pipeline either violated the 1960 right-of-way agreement or trespassed on the Moores' property. The Moores did not claim monetary damages and sought only ejectment. This Court stayed execution of the judgment so that Equitrans could seek condemnation of a right-of-way through the property upon which it was found to be trespassing (“the Property”). The Property consists of two portions of the Moores' property through which the pipeline runs, totaling approximately 0.56 acres.

Equitrans attempted to settle the underlying civil action before and after trial, but the Moores refused and countered with other demands. Equitrans then filed this condemnation action under 15 U.S.C. § 717f(h)

to obtain a right-of-way through the Property (“the condemnation right-of-way”). The Moores filed a motion to dismiss the complaint for failure to state a claim, and an answer with counterclaims alleging vexatious litigation and trespass by Equitrans. Equitrans then filed a motion to dismiss the counterclaims.

II. Applicable Law

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)

. This plausibility standard requires a party to articulate facts that, when accepted as true, demonstrate that the party has stated a claim that makes it plausible that the party is entitled to relief. Francis v. Giacomelli , 588 F.3d 186, 193 (4th Cir.2009) (citing Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ; Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

III. Discussion

A. Motion to Dismiss the Complaint

To state a claim for condemnation under § 717f(h)

, the plaintiff must plead that: (1) it is a “holder of a certificate of public convenience and necessity”; (2) the right-of-way will be used for the construction, operation, or maintenance of a pipeline; and (3) it was unable to “acquire [the right-of-way] by contract, or [was] unable to agree with the owner of [the] property [as] to ... compensation.” 15 U.S.C. § 717f(h).

Equitrans' complaint facially states a claim for condemnation under § 717f(h)

. It alleges that Equitrans holds a certificate of public convenience and necessity, issued by the Federal Energy Regulatory Commission, for the creation of the pipeline running through the Moores' property. Equitrans states that the Property will be used to maintain and operate the pipeline, which is necessary for its transmission of natural gas in interstate commerce. Finally, Equitrans plead that it “has attempted, but been unable, to acquire the [condemnation] right-of-way through negotiation with [the Moores].” ECF No. 1 at 3. It also attached email correspondence between the parties' counsel, showing that Equitrans offered to settle the underlying civil action before and after trial, but the Moores countered with other demands.

Equitrans' complaint clearly pleads all that is necessary for its condemnation claim to survive a motion to dismiss. However, the Moores argue that Equitrans' claim fails for several other reasons: (1) Equitrans failed to comply with the Natural Gas Act; (2) condemnation was a compulsory counterclaim in the underlying civil action; (3) Equitrans should be judicially estopped from claiming that it did not comply with the 1960 right-of-way agreement; and (4) condemnation here would violate the Fifth Amendment's Takings Clause.

1. Compliance With the Natural Gas Act

The Moores argue that Equitrans' condemnation claim must be dismissed because it failed to comply with the Natural Gas Act in building the pipeline and in seeking condemnation. Specifically, the Moores argue that the 1960 right-of-way agreement precludes condemnation of the Property under § 717f(h)

, and that Equitrans unlawfully entered the Property before seeking a right-of-way or condemnation.

a. Existence of a Contract

The Moores argue that Equitrans obtained the necessary right-of-way from their predecessors in title in 1960, and thus Equitrans was able to “acquire by contract” the necessary right-of-way. However, the Property is not part of the 1960 right-of-way. See 1:12-cv-123, ECF 102 at 4. The jury specifically found that, regarding the Property, the pipeline is not within the 1960 right-of-way or is trespassing. Moreover, the Moores seek to eject Equitrans from the Property, which would essentially force it to dig up the existing pipeline and move it to a location within the 1960 right-of-way. While Equitrans does have the 1960 right-of-way, it also has the right to choose the route of the pipeline. See Williams v. Transcontinental Gas Pipe Line Corp. , 89 F.Supp. 485, 489 (W.D.S.C.1950)

(“A broad discretion is necessarily vested in those to whom the power of eminent domain is delegated, in determining what property is necessary for the public purpose, with respect to the particular route, line [,] or location of the proposed work or improvement ....” (internal quotation marks omitted)). Because the 1960 right-of-way has been determined by the jury in the underlying civil action not to cover the Property, that contract should not be deemed to cover Equitrans' desired condemnation right-of-way.

b. Pre-Condemnation Occupation of Property

The Moores argue that Equitrans failed to comply with § 717f(h)

because it entered and used the Property without first seeking a right-of-way agreement or condemnation. Thus, the Moores argue that Equitrans acted in bad faith and did not attempt to obtain the right-of-way before entering the Property.

First, this Court cannot conclude that Equitrans seeks condemnation in bad faith.¹ This Court must take the allegations in Equitrans' complaint as true. Based on the complaint, Equitrans attempted to obtain by contract the condemnation right-of-way several times, but the Moores refused and countered with other demands. Taking these allegations in Equitrans' best light, this Court must conclude that Equitrans attempted in good faith to obtain the condemnation right-of-way by contract and that the Moores rejected those offers.

Second, § 717f(h)

does not require the condemnor to seek condemnation before entering the property. The prior unauthorized occupation of property to be condemned does not preclude condemnation. See Searl v. Sch. Dist. No. 2, of Lake Cnty. , 133 U.S. 553, 564–65, 10 S.Ct. 374, 33 L.Ed. 740 (1890) (“[P]rior occupation without authority of law would not preclude the company from taking subsequent measures authorized by law to condemn the land for their use.” (quoting Secombe v. Milwaukee & St. Paul Ry. Co. , 90 U.S. 108, 118, 23 Wall. 108, 23 L.Ed. 67 (1874) ). This is especially true here because Equitrans maintained throughout the underlying civil action that it built the pipeline within the 1960 right-of-way and, therefore, did not unlawfully enter the Property. Moreover, Equitrans sought to contract for the condemnation right-of-way before and after the verdict in the underlying civil action.

The Moores argue that this case is analogous to Humphries v. Williams Natural Gas Co. , 48 F.Supp.2d 1276 (D.Kan.1999)

, and Van Scyoc v. Equitrans, L.P. , No. 2:13–cv–01735, ––– F.Supp.3d ––––, 2015 WL 1346872 (W.D.Pa. Mar. 23, 2015), requiring strict compliance with the Natural Gas Act. However, those cases do not hold that a condemnor must seek condemnation before entering the property. Rather, both cases deal with the question of whether a condemnation claim preempts state law claims (like trespass) that arose before the condemnor...