Nodvin v. Plantation Pipe Line Co.

• Decision Date: 05 June 1992
• Docket Number: A92A0551,Nos. A92A0550,s. A92A0550
• Citation: 204 Ga.App. 606,420 S.E.2d 322
• Parties: , Util. L. Rep. P 26,240 NODVIN v. PLANTATION PIPE LINE COMPANY. PLANTATION PIPE LINE COMPANY v. NODVIN.
• Court: Georgia Court of Appeals

Page 322

420 S.E.2d 322

204 Ga.App. 606, Util. L. Rep. P 26,240

NODVIN v. PLANTATION PIPE LINE COMPANY.

PLANTATION PIPE LINE COMPANY v. NODVIN.

Nos. A92A0550, A92A0551.

Court of Appeals of Georgia.

June 5, 1992.

Reconsideration Denied June 23, 1992.

Richard A. Gordon, Atlanta, Micheline A. Besse, Norcross, for appellant.

Marvin P. Nodvin, pro se.

Edward T. Floyd, Hurt, Richardson, Garner, Todd & Cadenhead, Edward H. Nicholson, Jr., Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Nodvin instituted this suit against Plantation Pipe Line Company and Diversified Energy Services. He seeks damages for fraud and trespass, alleging that defendants engaged in a conspiracy through which they, without legal authority, entered upon his land and constructed a pipeline for the transportation of oil and gas. Defendants claim that this action was authorized by right-of-way easements contained in deeds executed in 1941 and 1968 within Nodvin's chain-of-title. Nodvin claims that these deeds are invalid. The trial court granted summary judgment in favor of Diversified and partial summary judgment in favor of Plantation; discovery motions filed by Nodvin were denied. In Case No. A92A0550, Nodvin appeals. In Case No. A92A0551, Plantation cross-appeals.

The 1941 Deed

By deed dated July 14, 1941, E.M. Huffine conveyed the original right-of-way easement to Plantation "for the purpose of constructing, maintaining, operating, altering, repairing, removing, changing the size of, and replacing pipe for the transportation as a common carrier for hire of oil, crude petroleum and refined petroleum products or combinations thereof or similar thereto, natural and artificial gas, casinghead and natural gasoline and any other liquids or gases, the grantee to have the right to select the route, under, upon, over and through the lands situate in said state and county, more particularly described as follows: All of Lot of Land No. 157 ... except.... Also: All of Lot of Land No. 158 ... with ingress and egress to and from the said right-of-way.

"And also the right to lay, construct, maintain, alter, repair, remove and replace at any time additional lines of pipe adjacent to and parallel with the line above mentioned, upon payment for each additional line so laid, the consideration above named.... It is provided that all pipelines constructed under this grant shall be confined to a strip of ground thirty feet in width, the center line of which shall be the center line of the first pipeline hereafter installed by grantee over, upon, through, under or across said lands.

"The grantee, by the acceptance here, agrees to bury the pipelines so that they will not interfere with the cultivation of the land, and also to pay any damage to crops, fences and timber, which may arise from laying, maintaining, operating or removing such pipelines. Said damage, if not mutually agreed upon, to be ascertained and determined by three disinterested persons; one to be appointed by the undersigned, __________ successors, heirs or assigns; one by the grantee, its successors or assigns, and the third by the two persons aforesaid, and the award of such three persons, or any two of them, shall be final and conclusive."

The consideration for this deed was $63.

The 1968 Deed

For a consideration of $1,680, H.C. Woods, by deed dated February 7, 1968, conveyed additional easement rights to Plantation across a tract of land lying in Land Lot Nos. 132, 157, and 158 "[a]nd also any other lands owned or claimed by said Grantor adjacent to the lands particularly described above, together with the right of ingress and egress and unimpaired access over and across the above described lands and adjacent lands of the grantor for all purposes incident to said right-of-way and easement ... herein granted.

"This instrument supplements and amends original easement and right-of-way grant (or grants) in which grantee was the grantee pertaining to the above described property and which is recorded in the Office of the Clerk of the Superior Court of said County in Georgia, Book 10, at page 202. Such grant (or grants) is hereby amended so that the second paragraph thereof shall read as follows: And also the right to lay, construct, maintain, operate, alter, protect, repair, remove and replace at any time additional line(s) of pipe generally parallel with the line above mentioned, with payment for each additional line to be the consideration above named. It is agreed that all of said pipelines shall be located within a strip of land fifty feet in width. The center line of the thirty foot strip covered by the original grant (or grants) is the grantee's 12/10-inch pipeline and the twenty foot additional strip covered by this instrument lies contiguous to said thirty foot strip on the side thereof on which the first additional pipeline shall hereafter be installed by grantee.

"It is the intention of the grantor to, and grantor does, give, grant, bargain, sell, convey and warrant to grantee the easements, rights and privileges aforesaid under, upon, over and through an additional strip of land twenty feet in width contiguous to the original thirty foot strip so that the thirty foot strip provided for in the original grant (or grants) shall hereafter be one fifty foot strip. The consideration stated herein shall also compensate for the construction of an additional pipeline on said fifty foot strip. The parties agree and confirm that grantee may use such area contiguous to the aforesaid fifty foot strip as may be reasonably necessary in the exercise of its easement rights.

"In addition to the above consideration, grantee agrees to repair or to pay for any actual damage which may be done to crops, fences, and timber directly caused by grantee exercising any rights herein granted; provided, however, after the first pipeline has been installed following the execution of this instrument, grantee shall have the right, without payment of damages, to keep the said fifty foot right-of-way clear of trees, undergrowth, lakes, ponds, buildings, structures and other improvements."

Additional Facts

Plantation constructed the original 10-inch pipeline in 1941. In 1951, Plantation constructed a 14-inch pipeline within the original 30-foot easement. In 1968, Plantation constructed a 26-inch pipeline in the additional 20-foot strip granted under the 1968 deed from Woods.

In 1969, Woods made a conveyance to Credico, Inc., which in turn made a conveyance to Nodvin in the same year. The conveyance to Nodvin covers property in Land Lot No. 158 over which the easement runs.

In 1987, Plantation embarked on a project to construct a 12-inch pipeline beside its other three pipelines along a 28-mile route from Bremen Station near Bremen, Georgia, to Austell Station near Austell, Georgia.

Plantation contracted for Diversified Energy Services to perform surveying, mapping, and right-of-way services in connection with the construction of the 12-inch pipeline. Employees of Diversified were directed and authorized to pay landowners affected by the construction the amount of money stipulated within Plantation's 1941 easements for the right to lay an additional pipeline across each landowner's property. If a particular landowner no longer owned all of the property within the pipeline easement, then the landowner was paid or tendered a prorated amount based on the "roddage" (a rod being 16 1/2 feet) of pipeline traversing his or her property. Diversified employees were also authorized to pay damages to landowners for any damage to their property located contiguous to Plantation's 50-foot easement strip that was used as temporary work space during construction.

Nodvin was one of the property owners affected by the 12-inch pipeline construction. In May or June of 1987, Diversified personnel offered Nodvin $100 as consideration for construction of the additional line and damage which would be caused in areas outside of the easement. In July of 1987, Diversified personnel tendered Nodvin $44 as the cash payment under the 1941 Huffine deed, as amended by the 1968 Woods deed, for the right to lay the additional pipeline along the portion of the right-of-way on Nodvin's property. Nodvin also had pine trees present in the area of a temporary work space. Diversified later attempted to settle these damages by offering plaintiff a total of $2,000 for cutting the pine trees and for the consideration required under the deeds. Nodvin stated that this was inadequate compensation and refused to accept these sums. During the summer of 1987, Plantation entered upon Nodvin's land and commenced laying the 12-inch pipeline.

Nodvin subsequently instituted this suit. In addition to alleging a conspiracy by defendants to commit fraud and trespass by using invalid easements to enter upon his property, he has asserted that they damaged his property by destroying valuable timber and vegetation, by failing to maintain the property which had been disturbed, thereby allowing erosion to occur, and that property used as a work space, outside the easement but contiguous to it, was not reasonably necessary to Plantation's construction activities.

The trial court rejected Nodvin's arguments that Plantation's pipeline right-of-way easement is invalid and that Diversified and Plantation engaged in a conspiracy to commit fraud and trespass. Accordingly, Diversified's motion for summary judgment was granted, and Plantation's motion for summary judgment was granted on all issues except those concerning: (1) the amount of pro-rated consideration to be paid to Nodvin for Plantation's exercise of its right to construct the additional 12-inch pipeline; (2) whether the area used by Plantation as a temporary work space contiguous to the 50-foot easement was reasonably necessary; (3) the amount of damages to be awarded to Nodvin for Plantation's cutting of pine trees in the area of the temporary work space.

The trial court also denied motions by...