Panhandle Eastern Pipe Line Co. v. Tishner

Decision Date21 September 1998
Docket NumberNo. 29A02-9707-CV-431,29A02-9707-CV-431
Citation699 N.E.2d 731
PartiesPANHANDLE EASTERN PIPE LINE COMPANY, Appellant-Plaintiff/Counter-defendant, v. Earl Jackson TISHNER, Martha Germadine Tishner, Martha G. Loveall, Earlene Kay Brewster, and Elizabeth Irene Reasoner, Appellees-Defendants/Counter-plaintiffs.
CourtIndiana Appellate Court

Thomas A. Withrow, Sally B. Peacock, Debra A. Mastrian, Kerry L. Wagner, Henderson, Daily, Withrow & Devoe, Indianapolis, for Appellant-Plaintiff/Counter-defendant.

Peter L. Obremskey, Anthony W. Patterson, Parr Richey Obremskey & Morton, Lebanon, for Appellees-Defendants/Counter-plaintiffs.


KIRSCH, Judge.

Panhandle Eastern Pipe Line Company (Panhandle) appeals the judgment of the trial court partially denying its request for a permanent injunction and ordering it to pay damages to Earl Jackson Tishner, Martha Germadine Tishner, Martha G. Loveall, Earlene Kay Brewster, and Elizabeth Irene Reasoner (the Tishners). Panhandle presents numerous issue on appeal, which we consolidate and restate as follows:

I. Whether the trial court erred in determining that Panhandle's easement was partially extinguished by the Tishners' adverse possession.

II. Whether Panhandle owed a duty to the Tishners to prevent damage to improvements placed in proximity to its pipeline when it held an open easement for maintenance of a pipeline through the Tishners' property.

We reverse and remand.


Panhandle, a natural gas company as defined by the Natural Gas Act of 1938, is a Delaware corporation with its principal place of business in Houston, Texas. Panhandle also maintains offices and conducts business in the State of Indiana and owns and operates a pipeline known as the "100 line," which travels through Hamilton County, Indiana. The 100 line is part of a pipeline system for the transportation of natural gas in interstate commerce from Texas to Michigan. As a natural gas company, Panhandle's operations are governed by the Federal Energy Regulatory Commission (FERC), the Natural Gas Pipe Line Safety Act, and regulations of the Department of Transportation relating to the location, construction, design, maintenance, operation, and safety of facilities and pipelines.

Earl and Martha Tishner live on real estate located in Hamilton County adjacent to State Road 38 South and own the property as life tenants. The remainder interest is held in fee simple absolute by the remaining named defendants. The Tishners have owned the property since 1956.

Panhandle is the present owner of an open easement of undefined width across the Tishners' property as successor in interest to an express right-of-way grant from Noblesville Milling Company to Indiana Gas Transmission Corporation, dated October 8, 1935, and recorded in the Office of the Recorder of Hamilton County, Indiana. The Tishners are successors in interest to the rights retained by Noblesville Milling Company under the terms of the easement. The easement provides, in relevant part, that Panhandle has the right to lay, maintain, operate, repair, replace, change the size of, and remove a pipeline. The Tishners are entitled to fully use and enjoy the premises except for the purpose granted to Panhandle. The grant further provides that the pipe be buried so as not to interfere with the cultivation of the land, and that the easement holder must pay for damages to crops and fences caused by the exercise of easement rights. After obtaining the easement, Panhandle's predecessor placed and maintained a 22"' pipeline through the property that the Tishners now own. This line was known as the 100 line.

The Tishners purchased the property in 1956 and built a house and driveway on it. In the early 1960's, the Tishners made further improvements to the property, including the installation of a swimming pool, a patio, a brick pool wall, a pool house, a stone wall entry into the pool area, and a brick entry wall. All of these structures are close to Panhandle's pipeline; most are within thirty-three feet of it. In addition, the Tishners planted several trees in proximity to the 100 line, and some directly over the 100 line.

In connection with its operation and maintenance procedures, Panhandle surveys the 100 line, including the portion that runs through the Tishners' property, by weekly aerial patrol and annual foot patrol to inspect the pipeline for evidence of leakage, the condition of the pipeline markers, water erosion, grading activities, and unusual conditions. Prior to 1988, Panhandle had entered the Tishners' property and completed its maintenance work without incident. Because Panhandle was able to work around the various improvements and trees without having to In 1988, Panhandle discovered a shorted casing in the 100 line at State Road 38 adjacent to the Tishners' property. Repair of the casing was required by federal regulation and was scheduled to coincide with the replacement of the 100 line with a higher grade 22"' pipe. A Panhandle representative visited the Tishners and notified them about the work that had to be performed on the pipeline. He explained that the work would require the removal of the brick entry wall, one-half of the stone wing wall, a large maple tree and other trees and shrubs on the western border of the Tishners' property. Panhandle offered to rebuild the entry wall after the completion of the work, but Mr. Tishner refused. Several days later, Panhandle representatives again visited the Tishners to explain the project. Mr. Tishner ordered them off the property. The following day, when the construction crew arrived to begin the project, they found that Mr. Tishner had parked several vehicles over the 100 line, blocking the maple tree and the brick entry wall and Panhandle's access to its pipeline. As a result, Panhandle filed a motion for a temporary restraining order and application for preliminary and permanent injunction requesting that the Tishners be restrained from interfering with Panhandle's right to maintain its pipeline and be required to remove all obstructions to the line. The court issued the restraining order and the Tishners complied.

remove them, Panhandle did not object to the Tishners' improvements.

Replacement of the 100 line required Panhandle to remove the brick entry wall, several trees and shrubs, the stone entry wall to the pool area, and to tear up the asphalt on the Tishners' driveway. Panhandle had to excavate a trench several feet deep and wide across the Tishners' property. The side of the trench abutted the Tishners' pool house and was about thirteen feet from the Tishners' pool wall. Panhandle did not shore up or brace the ground next to the wall or inside the trench during this work. When Panhandle completed the project, it filled in the trench and reseeded the Tishners' lawn, but did not repair or replace any of the improvements or landscaping.

Several months after the completion of the project, Panhandle was required to increase the size of the 100 line from 22"' pipe to 36"' pipe. This work required a bigger trench than the previous project. Once again, the trenches were not shorn up. At the conclusion of this project, Panhandle offered to seed the lawn and replace the brick entry wall, but Mr. Tishner again refused.

About three years later, Mr. Tishner planted more trees in proximity to the 100 line. He also began construction on a brick entry wall, which when completed will duplicate the one removed for the first Panhandle project and will sit directly on top of the 100 line. In response, Panhandle sought and obtained another temporary restraining order to prevent the Tishners from doing anything further which would threaten the integrity of the 100 line or prevent Panhandle from exercising its easement rights. Panhandle then sought a permanent injunction against the Tishners. The Tishners filed a counterclaim for damages to their improvements caused by Panhandle's work on its easement.

At trial, Panhandle's witness testified that Panhandle needed an easement of only thirty-three feet on each side of the 100 line in order to maintain it. The Tishners introduced evidence of the damages to their improvements caused by Panhandle's work on the 100 line, including that their pool wall, benches, and patio were damaged such that they had to be replaced. Their expert testified that this work would cost $41,850. They also introduced evidence that their curb, driveway, front yard, and playground were damaged by Panhandle's work.

The trial court ordered Panhandle to pay damages to the Tishners for their pool wall, benches, patio, curb, driveway, front yard, and playground, ordered that the Tishners be allowed to erect and maintain any improvements on their property that existed prior to 1988, but ruled that they could not erect any additional structures within the area that Panhandle claims as an easement. Panhandle now appeals.


Both Panhandle and the Tishners requested the trial court to enter findings of fact and conclusions thereon. When a party has requested specific findings of fact and conclusions pursuant to Indiana Trial Rule 52(A), the reviewing court cannot affirm the judgment on any legal basis; rather, the reviewing court must determine whether the trial court's findings are sufficient to support the judgment. Reese v. Reese, 671 N.E.2d 187, 191 (Ind.Ct.App.1996), trans. denied (1997). In reviewing the judgment, this court must first determine whether the evidence supports the findings, and second, whether the findings support the judgment. Shafer v. Lambie, 667 N.E.2d 226, 229 (Ind.Ct.App.1996). The judgment will be reversed only when clearly erroneous, that is, when the judgment is unsupported by the findings of fact and conclusions entered on the findings. Reese, 671 N.E.2d at 191. Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them. Shafer, 667...

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