Flynn v. Michigan-Wisconsin Pipeline Co.

• Decision Date: 05 September 1968
• Docket Number: MICHIGAN-WISCONSIN,No. 52874,52874
• Citation: 161 N.W.2d 56
• Parties: James J. FLYNN and Patrick S. Boyle, d/b/a Flynn and Boyle, a partnership, Appellants, v.PIPELINE COMPANY, Appellee.
• Court: Iowa Supreme Court

Page 56

161 N.W.2d 56

James J. FLYNN and Patrick S. Boyle, d/b/a Flynn and Boyle, a partnership, Appellants, v. MICHIGAN-WISCONSIN PIPELINE COMPANY, Appellee.

No. 52874.

Supreme Court of Iowa.

Sept. 5, 1968.

Dailey, Dailey, Ruther & Bauer, Burlington, for appellants.

Pryor, Riley, Jones & Walsh, Burlington, and Lane & Waterman, Davenport, for appellee.

BECKER, Justice.

Plaintiffs filed suit for declaratory judgment under Iowa Rules of Civil Procedure, #261 et seq. They seek construction of a right-of-way contract for gas pipeline purposes which would adjudicate the rights and obligations of the parties to the contract and their successors in interest. Plaintiffs' petition alleges the right-of-way contract in question gives defendant the right only 'to come upon the land of the Plaintiffs to manually repair and inspect the 4 inch pipeline, with such hand tools as may be necessary to perform this function. That the Defendant has no vested interest in any specific width, on Plaintiffs' land, and after performing such necessary functions of maintaining, operating and inspecting the 4 inch gas pipeline, it would be the responsibility of the Defendant to immediately remove from the premises, leaving them in the condition they were prior to the performance of such necessary repairs, maintenance or inspection.

'It has further been the contention of the Plaintiffs that they have the right to use the surface of the land and to construct temporary and permanent structures over the 4 inch pipeline of the Defendant. It has been the contention and position of the Defendant, Michigan-Wisconsin Pipeline Company, that the right-of-way contract grants a 50 foot wide easement, and that the Plaintiffs have no right to construct any structure or building over said 4 inch pipeline.

'7. That in order for the District Court of Iowa, in and for Des Moines County, on appeal from the award of the Sheriff's Commission, to determine properly the amount of damages to the Plaintiffs caused by the taking of the permanent 50 foot right-of-way under the condemnation proceedings, it is essential and necessary that a determination as to the rights of the parties under the May 16, 1949 right-of-way contract be made, and for a construction of the terms and provisions of said right-of-way contract and a determination of the legal status thereof.'

Defendant's answer asserts: 'the width of its easement necessary to exercise its said rights is 50 feet, that is, 25 feet on each side of said 4 inch pipeline. Defendant further asserts that the easement which it obtained from Belle Sutton in 1949 prohibits the placement of any permanent structure or other obstructions over, through, upon, under and across the pipeline right-of-way.'

The issues were thus joined. The trial court's findings of fact may be summarized as follows:

1. In 1949 the property in question was owned by Belle Sutton.

2. May 16, 1949 she and her voluntary guardian executed the right-of-way contract ¹ which read in pertinent part as follows: 'Right-of-Way Contract For and in consideration of Twenty eight and 00/100 Dollars ($28.00) receipt of which hereby is acknowledged Belle Sutton and Farmers & Merchants Savings Bank, Gdn. of the property of Belle Sutton, Infirm * * * hereby grant to Michigan-Wisconsin Pipe Line Company, * * * the right to lay, maintain, operate, inspect and remove gas or oil pipe line a four inch over, through, upon, under and across the following described lands, together with the right of entrance and exit at convenient points for such purposes, in the County of Des Moines, State Iowa, to-wit:

'* * *

'Grantee agrees to replace in a good and workmanlike manner all tile cut in the construction or maintenance of said pipeline, with a continuous tile or pipe across the ditch extending at least twenty-four (24) inches on each side.

'Grantee agrees to pay for all damages to crops, loss of crops, services, fences, and premises occasioned by the laying, maintaining, operating, altering, or removing of said pipe line or pipe lines.

'Grantee herein agrees to indemnify and hold harmless the grantor from any liability for damages occasioned by the pipe line or pipe lines of said grantee, located within the easement herein granted, not caused by the negligence of the grantor, his agents, servants, or employees.

'* * *

'Grantee agrees to pay for damages to growing crops and fences whether occasioned by any survey or any subsequent installations. If the amount of such damages cannot be agreed upon, they shall be determined by three disinterested arbitrators, one appointed by grantors, one by grantee and the third by the two so appointed. The written determination of the amount of damages made by any two of said arbitrators shall be final and conclusive.

'The said grantors shall have the right to fully use and enjoy the surface of said premises, except for the purpose hereinabove granted. All pipelines to be buried so as not to interfere with the cultivation of the farm.

'It is understood that the person securing this contract is without authority to make any agreement in respect of the subject matter hereof not herein expressed.' The instrument was promptly recorded. (The instrument contains no reference to width of the easement.)

3. The four inch pipeline was laid in 1949 to service the City of Burlington.

4. The court took judicial notice the City of Burlington has a population of 30,000 or more, and an adequate and dependable supply of natural gas to a modern community is essential to public welfare.

5. The gas pressures on the line vary from 375 pounds to 830 pounds and average 600 pounds per square inch.

6. Plaintiffs bought the property in 1962 subject to the easement which had been in operation some 13 years.

7. In 1966 an eight inch line was laid alongside the four inch line, both cross plaintiffs' property diagonally for 920 feet as indicated on Exhibit B (hereafter reproduced). The property is bounded on one side by U.S. Highway 34, on another side by State Highway #406 and on a third side by the railroad lines of the Chicago, Burlington and Quincy Railroad.

EXHIBIT B

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

8. Plaintiffs have erected buildings on the property as indicated in Exhibit B.

9. Hand tools have not been used extensively in construction and maintenance of pipelines since before 1949 and at that time 10 foot wide caterpillar tractors and other such equipment were in general use.

10. For many years and in the year 1949 sound industrial and engineering practices dictated the use of large machinery and equipment in the construction and maintenance of pipelines.

11. The worst enemey of the gas pipeline is corrosion and many pipelines which have now been in the ground for 20 years or more are being 'renovated.' In connection with the renovation of the lines the pipe is uncovered and removed from the ditch in which it has rested. It is then cleaned, inspected for leaks and given a new protective coating.

12. and 13. The heavy equipment used under sound industrial and engineering practices requires a 50 foot right-of-way for maintenance as well as construction. 14. Renovation, after 20 years or more, must be undertaken if the pipelines are to render satisfactory service.

15. While there is evidence that it is possible to lay or maintain a pipeline in a width of less than 50 feet, the evidence is overwhelming that a narrower width would seriously impede and slow the work and increase the hazards.

16. In connection with the inspection of the pipeline for leaks and other malfunctions, it is necessary to be able to view the surface of the ground above the line and this was as true in 1949 as it is today. Buildings and other structures erected over pipelines impede proper inspection and obviously seriously handicap the locating of leaks and the making of repairs.

After the foregoing factual determinations the trial court reviewed the numerous cases dealing with various aspects of the case and concluded the easement conveyed is 50 feet wide and the right-of-way contract prohibits plaintiff from constructing buildings or other obstructions on any part of the 50 foot right-of-way.

I. The case was tried to the court as a law action. In such cases we treat the matter as in the same forum in which it was tried below. Jackson Wholesale Florists v. Schappaugh Floral, 246 Iowa 1189, 1192, 70 N.W.2d 154. Rule of Civil Procedure 344 (f)(1) provides: 'Findings of fact in a law action, which means generally any action triable by ordinary proceedings, are binding upon the appellate court if supported by substantial evidence.'

The real question before us is whether the factual findings in this case, as pleaded and tried, justify the conclusion, As a matter of law, that the instrument in question conveyed a fifty foot right-of-way and prohibited building any structure or obstructions thereon. The trial court so found. We cannot agree.

The Width of the Easement

II. The findings of fact made by the trial court do not justify the breadth and particularity of its conclusions of law. As noted in the judgment; 'Many courts have been reluctant to fix the precise width of easements.' As will be explained, we think this a wise reluctance. The matter is considered with a somewhat different procedural background in Scheer v. Kansas-Nebraska Natural Gas Co., 158 Neb. 668, 64 N.W.2d 333. In that case the easement was acquired by condemnation. The condemnation proceedings did not refer to width except to specify the pipe would be three and one-half inches in diameter. The trial court quieted title to the real estate 'except a right-of-way across said real estate 3 1/2 inches wide and 4,046 feet long obtained for pipeline purposes in a condemnation proceeding.' In reversing, the Nebraska Court said at 64 N.W.2d, loc. cit. 337: 'The decree of the district court should have quieted title to plaintiff's lands subject to the easement of the...