Hunton v. Colonial Pipeline Co., 50221

• Decision Date: 13 May 1975
• Docket Number: No. 50221,No. 1,50221,1
• Citation: 216 S.E.2d 662,134 Ga.App. 801
• Parties: Bob HUNTON v. COLONIAL PIPELINE COMPANY
• Court: Georgia Court of Appeals

Page 662

216 S.E.2d 662

134 Ga.App. 801

Bob HUNTON v. COLONIAL PIPELINE COMPANY.

No. 50221.

Court of Appeals of Georgia, Division No. 1.

May 13, 1975.

Fredericks, Jones & Wilbur, Carl Fredericks, Marietta, for appellant.

Peek, Arnold, Whaley & Cate, Ross Arnold, William H. Cate, Charles E. Graham, Atlanta, for appellee.

Syllabus Opinion by the Court

MARSHALL, Judge.

This is an appeal from the dismissal of appellant's complaint in Paulding Superior Court for lack of venue.

Appellant Hunton owers a tract of land in Paulding County and appellee, Colonial Pipeline Company, buried two pipelines through appellant's property. Although appellant contends that appellee has acquired no right to bury the pipelines from appellant, either by condemnation or by purchase, appellant states in his brief: 'However, Colonial did acquire a written easement for a pipeline through the tract from the folks who sold the land to Bob, about twelve years ago (R-29). After getting the easement, Colonial put in a pipeline across the property, being the first of the two pipelines on the land of Bob.' Appellant was advised by appellee that appellee desired to buty the second pipeline and made appellant an offer of money for the right to do so, which was refused by appellant. On July 29, 1971, appellee tendered to appellant a sum for an additional pipeline, which tender was refused by appellant. Thereafter, appellee proceeded to bury the second petroleum pipeline on the property of appellant. Appellant then brought suit in Paulding County, which was dismissed as a result of a motion to dismiss on the ground that the venue was improper in Paulding Superior Court. There was a stipulation of fact between the parties to the effect that appellant's predecessors-in-title executed a right-of-way easement to appellee on April 28, 1962. The stipulation of fact also included the statement that appellee did tender to appellant $46.00 in United States currency, which tender was refused by appellant. It was also stipulated that efforts to arrive at a proper amount of construction damages have not been successful. Further stipulations are, as follows: '1. The complaint alleges and the answer admits that Colonial Pipeline Company was organized under Delaware laws and that its agent for service in Georgia is C.T. Corporation System, 1820 First National Bank Tower, Atlanta, Fulton County, Georgia; 2. Defendant was served in Fulton County by serving C.T. Corporation System; 3. Defendant was not served in Paulding County; 4. Plaintiff does not even allege that defendant has either a place or business or any employees in Paulding County, except that defendant's pipeline traverses the county; 5. Defendant's answer shows that its corporate headquarters and principal place of business are located on the fourteenth floor, Lenox Towers, 3390 Peachtree Rd., N.E., Atlanta, Fulton County, Georgia, and 6. Colonial's Georgia domestication court order fixes its principal place of business in Fulton County.'

In his sole enumeration of error, appellant contends that the trial court erred in sustaining the motion of defendant-appellee to dismiss appellant's complaint. He states as the sole issue in the case: whether or not venue of the action is appropriately in Paulding County. Held:

1. Appellant contends that the following paragraphs in the instrument labeled 'right-of-way easement' (and underneath 'option')-'As a part of the consideration hereinabove set forth, grantors hereby grant unto said grantee, its successors and assigns, the right at any time to construct, operate, and maintain and additional pipeline or pipelines substantially parallel to the first pipeline constructed by grantee on grantor's land above-described and grantee agrees to pay grantors the sum of $1.00 per rod for each additional pipeline constructed, said payment to be made before construction commences. Said additional pipeline or pipelines shall be subject to the same rights, privileges, and conditions, as set forth in this instrument.

'This option shall extend for a period of 12 months from the date hereof, during which time grantee may enter upon the premises for making surveys and performing work incidental thereto to locate the route of the initial pipeline to be constructed. Grantee may exercise this option at any time during such period by paying to grantors the aforesaid further consideration of $1.00 per rod and upon making such payment this option shall become an indefeasible right-of-way easement to be held by grantees, its successors and assigns. If grantee fails to pay said further consideration within said 12-month period, this option shall cease and terminate.'-conclusively demonstrates that appellee's right to lat down a second pipeline (upon payment of $1 per rod for the length of the pipeline) terminated at the end of the initial twelve-month period unless 'said further consideration' was paid during the period.

A careful reading of the entire instrument results in a contrary result. The first sentence of the instrument sets forth the consideration, as follows: 'For and in consideration of Ten and no/100 Dollars, the receipt of which is hereby acknowledged, and the further consideration of One ($1.00) Dollar per lineal rod to be paid within the period hereinafter provided, Mrs. Maggie Quinn and C. C. Quinn, hereinafter referred to as Grantors (whether one or more), do hereby grant and convey unto Colonial Pipeline Company a Delaware corporation, its successors and assigns, hereinafter referred to as Grantee, an easement for a pipeline right-of-way with the right to construct, maintain, inspect, operate, protect, repair, replace, change the size of, and remove a pipeline for the transportation of liquids and/or gases on, over, and through the following described lands of which Grantors warrant they are the owners in fee simple, situated in Paulding County, State of Georgia, to wit: . . .' The sole period mentioned in the entire agreement is the twelve-month option period. We conclude that the sum of $10 was the consideration for the option and that the payment of $1 per lineal rod during the initial twelve-month period converted the option into a right-of-way easement. This is set forth in the following language: 'This option shall...