McArthur v. East Tennessee Natural Gas Co., 01-S-01-9007-CH00064

• Decision Date: 01 July 1991
• Docket Number: No. 01-S-01-9007-CH00064,01-S-01-9007-CH00064
• Citation: 813 S.W.2d 417
• Parties: Willa S. McARTHUR, Plaintiff-Appellee, v. EAST TENNESSEE NATURAL GAS COMPANY, Defendant-Appellant. T.F. TAYLOR, Merrily Austin Teasley, and C.I. Crais, Plaintiffs-Appellees, v. EAST TENNESSEE NATURAL GAS COMPANY, Defendant-Appellant. 813 S.W.2d 417
• Court: Tennessee Supreme Court

Page 417

813 S.W.2d 417

Willa S. McARTHUR, Plaintiff-Appellee, v. EAST TENNESSEE NATURAL GAS COMPANY, Defendant-Appellant.

T.F. TAYLOR, Merrily Austin Teasley, and C.I. Crais, Plaintiffs-Appellees, v. EAST TENNESSEE NATURAL GAS COMPANY, Defendant-Appellant.

No. 01-S-01-9007-CH00064.

813 S.W.2d 417

Supreme Court of Tennessee,

at Nashville.

July 1, 1991.

John L. Stephens, Sewanee, J. Mark Stewart, Winchester, for plaintiffs-appellees.

Elizabeth S. Tonkin, Thomas E. Midyett, Jr., East Tennessee Natural Gas Co., Knoxville, Joseph H. Davis, III, Kingsport, for defendant-appellant.

OPINION

DROWOTA, Justice.

We granted Defendant-Appellant East Tennessee Natural Gas Company's (hereinafter "the Utility"), application for permission to appeal in these consolidated cases because they have raised an issue of public interest that needs to be addressed and resolved. This case involves a dispute over the location of the boundaries of an easement. The broader, public policy issue concerns what duty, if any, a utility has to a landowner to give notice of the location of the boundaries of an easement, once the utility has selected its boundary.

The Utility is an interstate pipeline company with power of eminent domain pursuant to T.C.A. Sec. 65-28-101. The Plaintiffs, McArthur, Taylor, Teasley and Crais, are the owners of four tracts of land in or near Monteagle, Grundy County, Tennessee. In 1951, the Utility obtained easement rights from the Plaintiffs or their predecessors in title. Each agreement granted to the Utility "a perpetual right-of-way and easement fifty (50) feet in width" for the purpose of laying, constructing, maintaining, operating, etc., natural gas pipelines (not to exceed two in number) across the property of the Plaintiffs.

These easements described the tracts over which the easement passed but did not describe the exact location of the easement. The Utility had the right under the easement to select the location of its easement. At the time these easements were executed, the property in question was unimproved woodland. The easements allowed the Utility to "cut and keep clear all trees, undergrowth and other obstructions, whether on said right-of-way and easement or not, that may injure, endanger or interfere with the use of said pipeline or pipelines." The Utility constructed the pipeline across Plaintiffs' property in 1951-52. No public plats were ever filed indicating the location of the existing pipeline.

After the pipeline had been laid, the Utility cleared and maintained the right-of-way by mowing and by the use of herbicides between thirty to fifty feet of the easement. There is no dispute that the Utility has a fifty foot easement over Plaintiffs' properties, however, there is a dispute as to how much of the easement had been cleared. The Utility contends it only cleared thirty to thirty-five feet of its fifty-foot right-of-way and that in 1986, it engaged a contractor to cut and clear trees and canopy along the pipeline to clear the right-of-way to its full fifty-foot width. A dispute arose as to the location of the easement and what was to be cleared on Plaintiffs' property. Plaintiffs filed suit to obtain a declaration as to the boundaries of the Utility's natural gas pipeline easement across their respective properties and to enjoin the Utility from cutting or clearing trees, shrubs and vegetation outside of the boundaries of its easement.

Plaintiffs contend that the Utility's easement is located thirty-five feet to the left of the pipeline and fifteen feet to the right of the pipeline as one faces the downstream flow of the gas. The Utility claims the reverse, that its easement is located thirty-five feet to the right and fifteen feet to the left, facing downstream. ¹

The trial court, after hearing from numerous witnesses, concluded that "the evidence indicates [the Utility] established the margins of the easement twenty-five feet distance on each side of the existing pipeline." The Court of Appeals affirmed, finding that where the grant of easement fixes the width of the easement but empowers the Utility to locate the easement anywhere on the subservient estate, the location of the easement is irrevocably established by the construction of the intended structure or improvement. The Court of Appeals further found that the easement agreements did not convey to the Utility a perpetual right to reserve its selection of boundaries until called upon to make or disclose a selection. The Utility had a duty to give notice of the selected boundaries to the landowners prior to the construction of the pipeline, or, at the latest, within a reasonable time after completion of the pipeline. This the Utility failed to do.

The Court of Appeals further held that "where nothing is done by [the Utility] to establish the location of the boundaries of the easement, the law will presume...