Potter v. Northern Natural Gas Co.

• Decision Date: 08 June 1968
• Docket Number: No. 45074,45074
• Citation: 201 Kan. 528,441 P.2d 802
• Parties: George L. POTTER, Appellant, v. NORTHERN NATURAL GAS COMPANY, a corporation, Appellee.
• Court: Kansas Supreme Court

Page 802

441 P.2d 802

201 Kan. 528

George L. POTTER, Appellant, v. NORTHERN NATURAL GAS COMPANY, a corporation, Appellee.

No. 45074.

Supreme Court of Kansas.

June 8, 1968.

Rehearing Denied July 12, 1968.

Syllabus by the Court

1. Under the terms of the grant of easement set forth in the opinion when a landowner undertakes a project for his sole benefit, which requires the lowering of a pipeline installed fifteen years prior, the expense of lowering the pipeline should be paid by the landowner for whose benefit the change is made.

2. An easement being the dominant tenement is not subject to the will of the possessor of the land.

3. The character and extent of the rights created by a grant of easement is determined by construction of the language of the grant and by the extent of the use made of the dominant tenement at the time of the grant.

4. If the language of a grant of easement is clear and explicit extraneous circumstances may not be resorted to, nor parol evidence admitted, to vary the terms of the instrument.

5. The record is examined in an action to require a pipeline company to pay for lowering a pipeline and to recover damages and it is held the construction and effect of the grant of easement became a question of law which determined the action and summary judgment for defendant was proper.

A. M. Fleming, Garden City, argued the cause and Lloyd H. Haag, Dale E. Saffels and Clifford R. Hope, Jr., Garden City, were with him on the brief, for appellant.

R. H. Calihan, Jr., Garden City, argued the cause and Ray H. Calihan, Logan N. Green and Daniel J. High, Garden City, were with him on the brief, for appellee.

FROMME, Justice:

This appeal was taken from a summary judgment entered in favor of defendant on the pleadings. The action was filed by a landowner, George L. Potter, against a pipeline company operating a pipeline across plaintiff's property for the transmission of natural gas. The purpose of the action is to require the company to pay the expense of lowering 300 feet of pipeline and to recover damages for failure to do so under the terms of the grant of easement.

The defendlant, Northern Natural Gas Company, a corporation, will be referred to as the pipeline company.

From the allegations in the petition we learn the grant of easement was made in 1950 and the pipeline was installed at that time. The land previously had been and continued to be irrigated and farmed thereafter.

In 1965, fifteen years after installation of the pipeline, the landowner entered upon a project to level and regrade the land in an effort to increase production but was prevented from completing the project because the pipeline company has refused to lower 300 feet of the pipeline at its expense.

The pipeline company stipulated during oral arguments before this court that they would lower the pipeline if the landowner would pay the expense thereof. The landowner contends the pipeline company is obligated to pay this expense under the terms of the easement.

A copy of this easement, which is a part of the petition, omitting the heading and the acknowledgment, reads as follows:

'Know All Men by These Presents:

'That George L. Potter, a single man, 923 State St., Lafayette, Indiana, of the County of Tippecanoe and State of Indiana, for and in consideration of the sum of One Dollar ($1.00) per lineal rod, receipt of One Dollar ($1.00) of which consideration is hereby acknowledged and balance of which is to be paid when and as the location of a pipe line over and through the lands hereinafter described shall be established, surveyed and measured, and the further consideration of the performance of the covenants and agreements by the grantee, as hereinafter set out and expressed, does hereby GRANT, REMISE AND RELINQUISH UNTO NORTHERN NATURAL GAS COMPANY, a Delaware Corporation, its successors or assigns the RIGHT, PRIVILEGE AND EASEMENT to construct, maintain and operate a pipe line, and appurtenances thereto, over and through the following described lands and appurtenances thereunto belonging, including, riparian rights, situated in the County of Finney and State of Kansas, to-wit:

'All that part of the East Half (E 1/2) of Section Three (3), located NORTH of the Atchison Topeka & Santa Fe Co's. Right of Way; and SOUTH of the Farmers Ditch Co.'s Right of Way; in the East Half (E 1/2) of Section Three (3), Township Twenty-Four (24)-S; Range Thirty-Four (34);

'TO HAVE AND TO HOLD unto said NORTHERN NATURAL GAS COMPANY, its successors and assigns so long as such pipe line and appurtenances thereto, shall be maintained, together with the right of ingress to and egress from said premises, for the purpose of constructing, inspecting, repairing, maintaining and replacing the property of the grantee located thereon or the removal thereof, in whole or in part, at the will of the grantee; it being the intention of the parties hereto that grantor is hereby granting the uses herein specified without divesting grantor of the right to use and enjoy said above described premises, subject only to the right of the grantee to use the same for the purposes herein expressed.

'As a further consideration for this grant, the grantee herein agrees as follows:

'(1) That it will bury all pipe laid upon said land to a sufficient depth so as not to interfere with the cultivation of the soil.

'(2) That it will pay to grantor any damages which may arise to growing crops, trees, shrubbery, fences or buildings from the construction, maintenance or operation of said pipe line.

'(3) That grantee will replace or rebuild to the satisfaction of grantor or of his representative, any and all damaged parts of all drainage systems, the damage to which shall be occasioned by the construction of said pipe line under and through the above described premises.

'This instrument, and the covenants and agreements herein contained, shall inure to the benefit of and be binding and obligatory upon the heirs, executors, administrators, successors and assigns of the respective parties.

'IN WITNESS WHEREOF, we have hereunto set out hands this 27th day of April, 1950.

Signed, Sealed and Delivered in the Presence of

J. B. Center

H. V. Arwin

George L. Potter'

The trial court found no ambiguity in the instrument and determined as a matter of law from the entire instrument the pipeline company was not required to lower the pipeline at its expense under the facts set forth in the petition.

If the language of a grant of easement is clear and explicit extraneous circumstances may not be resorted to, nor parol evidence admitted, to vary the terms of the instrument. (25 Am.Jur.2d, Easements and Licenses, § 23, p. 434; 28 C.J.S. Easements § 26, p. 680.)

Therefore, it would appear if the language of the grant is clear and explicit the construction to be given the instrument was a question which could properly be determined on motion for summary judgment under the rules set forth in Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964, and Jarnagin v. Ditus, 198 Kan. 413, 424 P.2d 265.

Before examining the express terms of the present easement it may be helpful to review some of the basic rules of law which concern the nature and characteristics of an easement.

An easement is an interest which one person has in the land of another. A primary characteristic of an easement is that its burdens fall upon the possessor of the land from which it issued. This characteristic is expressed in the statement that the land constitutes a servient tenement and the easement a dominant tenement. (Restatement of Law, Property, Vol. V, Servitudes, § 450, p. 2901.)

The owner of the servient tenement may make any use thereof which is consistent with or not calculated to interfere with the exercise of the easement granted. (Tiffany, Law of Real Property, 3d Ed., Vol. 3, § 811; 28 C.J.S. Easements § 91, p. 770.) The character and extent of the rights created by a grant of easement is determined by construction of the language of the grant and by the extent of the use made of the dominant tenement at the time of the grant. (Tiffany, Law of Real Property, 3d Ed., Vol. 3, § 802; 28 C.J.S. Easements § 26, p. 680.)

The landowner places special emphasis on the following statement appearing in the habendum clause of the grant:

'* * * it being the intention of the parties hereto that grantor is hereby granting the uses herein specified without divesting grantor of the right to use and enjoy said above described premises, subject only to the right of the grantee to use the same for the purposes herein expressed.'

He argues if the grantee is not required to lower the pipeline and pay this expense the grantor has been divested of the right to use and enjoy the premises in violation of the grant.

This provision authorizes the landowner to use and enjoy the land subject only to the right of the grantee to use the same for the purposes therein expressed (operation of pipeline across the land). It is clear the landowner has the right under the provision to irrigate and farm the land as he did from 1950 to 1965. However, the rights granted and received are to be determined under...