Panhandle Eastern Pipe Line Co. v. Musselman

• Decision Date: 20 May 2003
• Docket Number: Docket No. 237106.
• Citation: 257 Mich. App. 477,668 N.W.2d 418
• Parties: PANHANDLE EASTERN PIPE LINE COMPANY, Plaintiff-Appellant, v. Virgil MUSSELMAN and Margaret Musselman, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

668 N.W.2d 418

257 Mich. App. 477

PANHANDLE EASTERN PIPE LINE COMPANY, Plaintiff-Appellant, v. Virgil MUSSELMAN and Margaret Musselman, Defendants-Appellees.

Docket No. 237106.

Court of Appeals of Michigan.

Submitted May 6, 2003, at Lansing.

Decided May 20, 2003.

Approved for publication July 10, 2003, at 9:00 a.m.

Released for Publication September 9, 2003.

Bodman, Longley & Dahling LLP (by Robert G. Brower, James A. Smith, and Thomas P. Bruetsch), Detroit, for the plaintiff.

Halm, Christian & Prine, PC (by Thomas A. Halm), and Mark Smiley PLLC (by Mark C. Smiley), Howell, Howell, for the defendants.

Before: Bandstra, P.J., and Gage and Schuette, JJ.

PER CURIAM.

Plaintiff Panhandle Eastern Pipe Line Company (Panhandle) initiated an action seeking to enjoin defendants Virgil and Margaret Musselman from obstructing plaintiff's easement on defendants' property. Both parties filed motions for summary disposition, and the trial court granted summary disposition to defendants. Plaintiff now appeals as of right. We reverse and remand.

I

Plaintiff is a natural gas company under the Natural Gas Act, 15 USC 717 et seq., and holds Certificates of Public Convenience and Necessity issued by the Federal Energy Regulatory Commission for its interstate natural gas transmission system. Plaintiff owns and operates a natural gas transmission pipeline system that crosses defendants' property. Plaintiff acquired a right-of-way with regard to the property from defendants' predecessors on May 15, 1962. Specifically, the right-of-way permits plaintiff to "lay, construct, maintain, alter, inspect, repair, replace, relocate, change the size of, operate, and remove a pipe line," and grants plaintiff "the right of ingress and egress, to, on, from and over" the premises. Further, the right-of-way provides that the grantor "shall not place anything over or so close to any pipe line or other facility of Grantee as will be likely to interfere with Grantee's access thereto by use of equipment or means customarily employed in the maintenance of pipe lines."

Over the course of time, trees and shrubbery have grown and been planted on the property by defendants. Plaintiff wished to clear the property to accommodate maintenance, repair, and testing of the pipeline, but defendants refused to allow plaintiff to clear the property.

Plaintiff filed its complaint and thereafter sought a preliminary injunction on May 9, 2000. Plaintiff argued that the failure to permit clearing of the property violated the provisions of the right-of-way agreement and created an unwarranted risk of harm to the adjacent landowners, which in turn jeopardized the continued supply of natural gas to consumers. Plaintiff asserted that the easement property must be cleared and maintained to allow immediate access by vehicles and heavy equipment in the event of a gas leak and to allow plaintiff to conduct aerial patrols over the pipeline pursuant to federal law. Defendants argued that plaintiff did not need to remove trees in order to accommodate any maintenance, repair, or testing of the pipeline. Defendants argued that the right-ofway grant does not indicate that plaintiff can make a thirty-foot clearing on either side of the pipeline and contended that no necessity could be shown for plaintiff's request for injunctive relief.

The trial court denied injunctive relief, finding that the right-of-way agreement does not provide for a clearing of the property. The court found that plaintiff failed to establish that clearing the property was necessary for safety patrol purposes and that aerial surveillance, while more convenient, was not necessary. Finally, the court found that plaintiff merely wanted to inspect the property, but it had inspected the property since 1962 without incident and, thus, clearing was not necessary.

Before the court ruled on the preliminary injunction, the parties submitted a stipulated order to convert the proceedings to allow motions for summary disposition. The parties thereafter filed cross-motions for summary disposition based on similar arguments as presented during argument for the preliminary injunction. The trial court thereafter granted defendants summary disposition. In its decision, it incorporated its previous five-page written opinion in which it denied the preliminary injunction.

II

Although the trial court stated in its order that it granted summary disposition pursuant to MCR 2.116(C)(7), (8), and (10), because it appears the court relied on documentary evidence, as opposed to only the pleadings, in rendering its decision, we will review it under MCR 2.116(C)(10). A motion brought under MCR 2.116(C)(10) tests whether there is factual support for a claim. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). When deciding the motion, the trial court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party to determine whether a genuine issue of material fact exists to warrant trial. Ritchie-Gamester v. City of Berkley, 461 Mich. 73, 76, 597 N.W.2d 517 (1999). On appeal, this Court reviews de novo a trial court's decision regarding a motion for summary disposition. Spiek, supra at 337, 572 N.W.2d 201.

On appeal, plaintiff argues that it has the right, pursuant to the grant itself as well as federal law, to clear trees, vegetation, and other development of its easement in order to patrol the easement by air as part of its surveillance and maintenance program, and to obtain immediate access to the pipeline in case of an emergency. This access and maintenance allegedly requires a thirty-foot clearance on both sides of the pipeline. According to plaintiff, the undisputed facts establish that emergency repair is impossible because of trees planted by defendants, that aerial surveillance is the customary and most efficient manner of inspection required by federal regulation, that inspection for corrosion is hampered by the trees, and that the tree roots growing around a pipeline can damage the protective coating, causing corrosion and leaks.

Defendants argue that plaintiff has failed to take any action with regard to the property for thirty-eight years. Defendants contend that a sixty-foot clear-cut right-of-way is not a matter of necessity for plaintiff, but is merely a convenience. According to defendants, a sixty-foot clear-cut right-of-way did not exist at the time of the installation of the pipeline and many of the trees sought to be removed actually predate the installation of the pipeline. Finally, defendants contend that plaintiff has several other viable options available to it, such as negotiating with defendants or initiating eminent domain proceedings.

III

The rights of the holder of an easement are defined by the easement agreement. Great Lakes Gas Transmission Co. v. MacDonald, 193 Mich.App. 571, 575, 485 N.W.2d 129 (1992). Further, the grantee has all rights that are incident or necessary to the reasonable and proper enjoyment of the easement. Unverzagt v. Miller, 306 Mich. 260, 265, 10 N.W.2d 849 (1943). It has been held that, in Michigan, an owner of a pipeline easement is entitled to reasonable access to the land for maintenance and repair purposes. Eyde v. Michigan, 82 Mich.App. 531, 541, 267 N.W.2d 442 (1978).

Although federal law does not grant plaintiff any more rights over the property than does the grant of the right-of-way itself, federal law defines plaintiff's duties with regard to the maintenance of its pipelines and, thus, addresses what is required of plaintiff with regard to the right-of-way. Federal law preempts the regulation of interstate piplines. MCL 483.160. Pipeline safety is regulated by the federal Department of Transportation under 49 USC 60101 et seq. Under 49 USC 60102(a)(1)(B), the Department of Transportation has the authority to prescribe the minimum safety standards for transporters of natural gas. The Department of Transportation regulations are codified in the Code of Federal Regulations, title 49, subtitle B, chapter 1, subchapter D, part 192 et seq. Section 192.703 regulates emergency plans for pipelines and provides, "each operator shall establish written procedures to minimize the hazard resulting from a gas pipeline emergency...." With regard to pipeline maintenance, subsection 192.705(a) provides that "[e]ach operator shall have a patrol program to observe surface conditions on and adjacent to the transmission line right-ofway for indications of leaks, construction activity, and other factors affecting safety and operation." Subsection 192.705(c) further provides that "[m]ethods of patrolling include walking, driving, flying or other appropriate means of traversing the rightof-way."

IV

Plaintiff does not argue that the right-of-way agreement explicitly grants plaintiff a sixty-foot-wide right-of-way. Instead, plaintiff essentially argues that the agreement grants plaintiff the right-of-way to install and maintain the pipeline and that a sixty-foot clearance is necessary for its maintenance. The parties put a great deal of emphasis on the necessity of aerial surveillance as a means of maintaining the pipeline.

Plaintiff submitted several affidavits in support of its argument that the right-ofway must be cleared to allow for proper maintenance and inspection. Tim Walter, plaintiff...