Moore v. Equitrans, L.P.

• Decision Date: 23 September 2014
• Docket Number: Civil Action No. 1:12CV123.
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Jeffrey J. MOORE and Sandra J. Moore, Plaintiffs, v. EQUITRANS, L.P., a Pennsylvania limited partnership, Defendant.

49 F.Supp.3d 456

Jeffrey J. MOORE and Sandra J. Moore, Plaintiffs

v.EQUITRANS, L.P., a Pennsylvania limited partnership, Defendant.

Civil Action No. 1:12CV123.

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

Signed Sept. 23, 2014.

Kenneth E. Webb, Jr., Patrick Craig Timony, Bowles, Rice, McDavid, Graff & Love, Charleston, WV, for Plaintiffs.

David K. Hendrickson, R. Scott Long, Stephen E. Hastings, Hendrickson & Long, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND AMENDED MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND SCHEDULING STATUS AND SCHEDULING CONFERENCE

FREDERICK P. STAMP, JR., District Judge.

I. Procedural History

The plaintiffs, Jeffrey J. Moore and Sandra J. Moore (“the Moores”), initially brought this action in the Circuit Court of Marion County, West Virginia, against the defendant, Equitrans, L.P. (“Equitrans”). The defendant subsequently removed this action to this Court based on diversity jurisdiction. In their complaint, the plaintiffs allege that predecessors of the defendant and the plaintiffs entered into a valid right-of-way agreement to place a 16–inch pipeline (what the parties call the “H–557 pipeline”) on the plaintiffs' property. However, the plaintiffs claim that the defendant breached that contract by constructing approximately 700 feet of pipeline off of the designated route in the right-of-way contract. By way of relief, the plaintiffs are claiming damages for breach of contract and trespass, and also seek an ejectment order for the removal of the pipeline from their property.

After removal, the defendant sought leave of this Court to file a counterclaim against the plaintiffs for protective easement. This Court granted that motion. In its counterclaim, the defendant contends that it did not mistakenly place the pipeline off of the designated route. However, the defendant filed the counterclaim in order to assert that if it did place the pipeline off of the designated route, it has fulfilled the requirements of adverse possession and thus is entitled to a prescriptive easement.

Thereafter, the parties filed a joint motion to extend deadlines. This was granted based on the parties' indication that a key witness, Revelee Henry Allen (“Allen”), who is a former employee of the defendant, needed to change his testimony from his previous deposition. Once another deposition of Allen was completed, the parties each filed motions for summary judgment. The defendant filed both a motion for summary judgment and an amended motion for summary judgment stating that the amended motion was filed out of an abundance of caution as the defendant had incorrectly labeled the first motion for summary judgment.

This Court then held a motion hearing at which the parties orally argued their individual motions for summary judgment. This Court then entered an order vacating the scheduling order, as pretrial proceedings were set to occur in the near future. Further, in that same order, this Court directed the parties to submit further briefing solely on (1) the issues relating to the jurisdiction of this Court under the Federal Energy Regulatory Commission (“FERC”) to consider any possible condemnation claim and (2) the process that the parties believe this Court should pursue in considering the arguments made in the parties' motions for summary judgment, particularly as to how other claims would be affected by any condemnation proceeding involving FERC. Supplemental briefing was then submitted by the parties.

II. Facts

A. Defendant's Motion for Summary Judgment

The defendant makes several arguments in its motion for summary judgment, they are as follows:

1. The H–557 pipeline was laid and replaced properly according to the 1960 right-of-way agreement. The defendant argues that, despite the plaintiffs' argument that the pipeline had to be laid “exactly” along the route in the right-of-way agreement, the actual agreement uses the phrase “approximately along the route laid and marked for same.” Thus, the pipeline only need to be approximately along the route. Further, the defendant argues that the right-of-way allowed it to make changes in the location because of road construction or relocations, ground slips or other causes beyond the control of the defendant.

2. The plaintiffs' claims are time barred because the applicable statute of limitations for their claims would have given them a maximum of ten years to file and they filed over 15 years later. The replacement pipeline was laid in 1995–96 and the plaintiffs did not file until 2012.

3. If the Court finds that the pipeline was placed incorrectly, the defendant is still entitled to a prescriptive easement based on adverse possession because: (1) Mr. Moore testified he knew where the pipeline was on his property; (2) the defendant's use of the land was continuous and uninterrupted for at least ten years prior to this action; (3) there is an identifiable starting and ending point, thus the line and width of measurement of the pipeline can be accurately determined; and (4) use of the land will be the same as it was during the time of prescription.

4. The plaintiffs have not suffered any damages. The defendant asserts that Mr. Moore has stated (1) that he is only seeking damages if the pipeline is removed and relocated and (2) that he is not making a claim for diminution of value of his property. Thus, the defendant asserts that the plaintiffs cannot maintain their claims for trespass and breach of contract because they are only seeking damages if the ejectment order is granted.

5. Ejectment is not a proper remedy on the merits. The defendant contends that the plaintiffs are bringing this action as retaliation against EQT, a party not involved in this action, for drilling on their property. The defendant asserts that the plaintiffs' assertion that they want the defendant to move a fifty year old pipeline and dig new holes to place it right beside the current location is not a reasonable remedy.

6. Ejectment is not a proper remedy because the defendant has the right to condemn the property at issue pursuant to the Natural Gas Act. The defendant asserts that it is only asserting this as an alternative to its other arguments because it would require leave from this Court to file a counterclaim for condemnation but that it would be able to meet all the requirements if it were granted such leave.

In their response, the plaintiffs first argue that the defendant has created a material issue of fact because of its alternative factual arguments, i.e. that it placed the pipeline where it was supposed to be located and that it placed the pipeline approximately where it was supposed to be located. The plaintiffs then make the following arguments:

1. The movement of the pipeline was not “approximately” along the right-of-way route. The evidence of the survey shows that the defendant did not merely move the pipeline two to five feet but rather moved the pipeline 20 to 30 to even 65 feet off of the agreed right-of-way. Further, the plaintiffs contend that the evidence also shows that the defendant kept the pipeline operational while replacing it, and thus they could not have put the replacement pipeline back in the same trench that was still in use. Accordingly, the plaintiffs argue, because the defendant unilaterally moved the pipeline, it breached the right-of-way and that constitutes a continuing trespass.

2. There was no road construction, ground slips or other causes beyond the control of the defendant that would have allowed the defendant to change the location of the pipeline under the right-of-way agreement.

3. The plaintiffs filed within the statute of limitations because of the “discovery rule.” The plaintiffs argue that they did not know or should not have reasonably known of the misplacement of the pipeline until 2012 when Mr. Moore's attention was directed to the pipeline because of the misplacement of drilling pads by EQT. The plaintiffs assert that (1) Mr. Moore asked employees of the defendant whether the pipeline complied with the right-of-way and they told him it did, he was only tipped off to its location after they marked the pipeline with flags and (2) the defendant's own employees did not know the pipeline's location. Finally, the plaintiffs contend that because the pipeline was buried the plaintiffs had no reason to know its exact location but only knew generally where it had been placed in 1995–96.

4. The misplacement of the pipeline constitutes a continuing trespass either because (1) the defendant placed the pipeline off of the agreed route, or (2) because the defendant continues to flow its gas through the misplaced pipeline.

5. The defendant cannot meet the open and hostile elements for adverse possession because the pipeline was buried when it was relocated. Also, the defendant's employees testified that they believed that the pipeline was in the correct place until they reviewed the construction file. Thus without that file the plaintiffs would also not have known that fact. Further, the defendant was not hostile because it had a valid right-of-way agreement with the plaintiffs.

6. Ejectment is a proper remedy because under West Virginia law ejectment is proper when trespass occurs no matter how inconsiderable the damage is to the real property.

7. The defendant cannot make a valid condemnation argument because it has committed a trespass on the plaintiffs' property and thus its request is done with unclean hands and cannot be allowed.

In its reply, the defendant first reiterates its arguments as to the difference between “exact” and “approximate” in the right-of-way agreement. Further, the defendant reiterates its arguments as to why ejectment is an improper remedy in this case. The defendant then goes on to argue that it was within the right-of-way agreement clause because it was relocating the pipe for “other causes beyond the control” of the defendant because the...