Southern Star Central Gas v. Murray

• Court: Missouri Court of Appeals
• Writing for the Court: Robert S. Barney
• Citation: Southern Star Central Gas v. Murray, 190 S.W.3d 423 (Mo. App. 2006)
• Decision Date: 15 March 2006
• Docket Number: No. 26930.,26930.
• Parties: SOUTHERN STAR CENTRAL GAS PIPELINE, INC., Appellant, v. David R. MURRAY a/k/a David R. Murphy, Respondent.

Page 423

190 S.W.3d 423

SOUTHERN STAR CENTRAL GAS PIPELINE, INC., Appellant, v. David R. MURRAY a/k/a David R. Murphy, Respondent.

No. 26930.

Missouri Court of Appeals, Southern District, Division Two.

March 15, 2006.

Motion for Rehearing or Transfer Denied April 10, 2006.

Application for Transfer Denied May 30, 2006.

COPYRIGHT MATERIAL OMITTED

John Nichols, Teresa J. James and Teresa L. Mah, Overland Park, for appellant.

Andrew P. Wood, Neosho, for respondent.

ROBERT S. BARNEY, Judge.

Southern Star Central Gas Pipeline, Inc. ("Appellant") appeals the trial court's judgment denying it injunctive relief against David R. Murray a/k/a David R. Murphy ("Respondent") arising from its allegations that Respondent was impairing its use of a pipeline easement by the presence of a permanent dwelling within the boundaries of its easement. Appellant alleges four points of trial court error discussed below. We affirm.

The record reveals that on July 8, 1999, Respondent purchased real property on which was located a modular home. Prior to Respondent's purchase of the property, one of Respondent's predecessors in interest granted a pipeline easement to one of Appellant's predecessors in interest on September 28, 1967. The easement document was devoid of any language from which the easement size or location could be determined, i.e., it simply provided an easement somewhere "over and through the following real estate in Newton County, State of Missouri, to-wit: E/2 SW/4 SW/4 Sec 13-T24N-R33W except the West 208 feet of the North 416 feet thereof." The easement further provides, in part, that

a Right-of-Way to construct, reconstruct, renew, operate, maintain, inspect, alter, replace, repair and remove a pipe line, and (subject to the payments hereinafter provided) additional pipe lines for the transportation of gas, oil, petroleum, or any of its products, water and other substances and such drips, valves, fittings, meters and other equipment and appurtenances as may be necessary or convenient for such operations .. . . As part of the consideration hereof, [Appellant] agrees, upon Grantor's written request therefor, to make a tap upon its gas pipeline constructed hereunder at a point nearest the principal dwelling house now on said land, and sell, or cause to be sold, to Grantor at said connection natural gas for domestic purposes in the principal dwelling house now on said land under and subject to such [Appellant's] rules and regulations now and from time to time hereafter governing such sales, at the price from time to time charged domestic consumers of natural gas from this or [Appellant's]pipeline and continue to so sell, or cause to be sold, such gas as long as [Appellant] transports gas through said pipeline, all subject to governmental restrictions upon the sale, delivery and use of natural gas.

And also from time to time additional such pipe lines and appurtenances together with the right of ingress and egress at convenient points for such purposes; together with all rights necessary for the convenient enjoyment of the privileges herein granted.

In 1968, Appellant's predecessor in interest installed a twenty-inch pipeline underneath the property subject to the easement. The pipeline is buried four to six feet underneath the ground, and is part of a natural gas conveyance system that "runs from McDonald County, Missouri, up to [Appellant's] Saginaw compressor station just on the south side of Joplin," and has "a maximum operating pressure of 900 pounds." The pipeline is classified as a "high pressure" line and the record reveals, "just for a perspective, a typical house delivery [line] is a half a pound. So this [pipeline] is 1,800 times greater than what somebody would have in their house."

The modular home was on the real property at the time Respondent purchased the property in 1999 and Respondent testified he believed it had been at that location since at least 1992. After purchasing the property in 1999, Respondent did not move the modular home, which at that time was without foundation and was merely sitting on concrete blocks.

Respondent also testified that during the first year he owned the property representatives from Appellant's predecessor in interest visited his property to make inspections, but never mentioned the modular home was too close to the pipeline.

In September of 2000, Respondent moved into the home with his girlfriend and her two daughters; they began remodeling the home and Respondent eventually spent about $60,000.00 making improvements to it, including pouring a foundation for the home in 2001. After Respondent's girlfriend called "Dig-Rite" in preparation for the pouring of the footing for the foundation, representatives from Appellant's predecessor in interest visited Respondent's property again. At that time, using yellow paint, the company marked the gas line about five feet from the residence.¹ According to Respondent, he discussed the pipeline with the company representatives at that time, and again they did not mention the home was too close to the pipeline. Thereafter, Respondent added a porch, stairs, a new roof, and additional rooms to the home.

The record also shows that Appellant sent Respondent a form letter on March 12, 2004, informing him that

[a]s part of maintaining a safe and reliable pipeline system . . . it is necessary for [Appellant] to clear all or part of its right-of-way of brush, trees and debris that interfere with the effective inspection and patrol of its pipeline system. During this project, [Appellant] will be clearing approximately 33 feet centered over the pipeline ... The end results [sic] will be a cleared corridor that is accessible by maintenance crews and enhances the effectiveness of aerial patrol.

Appellant's representatives then visited Respondent on several occasions; each time Respondent prevented them from cutting any trees or brush on his property.

On May 27, 2004, Respondent received another letter from Appellant regarding the clearing of its easement right-of-way. The letter stated:

Incumbent on [Appellant], as a prudent and safety conscious operator of an interstate natural gas pipeline system, is the periodic obligation and right to keep clear its Rights-of-Way and easements of brush, trees and debris that might interfere with the effective inspection, patrol, operation and maintenance of its system, to assure that the pipeline remains safe to the general public ... In your particular case, [Appellant] has the need to remove 8-10 trees from your property which have been determined by [Appellant] to be a potential hazard to the continued safety of the pipeline that runs through your property. It is my understanding that you have stated that to accomplish that necessary work that [Appellant] `will have to get a court order.' By this letter, [Appellant] wants to inform you that the clearing crew will be on your property on June 15, 2004, to perform such clearing. I trust that this can be performed without [Appellant] having to resort to seeking the assistance of the courts.

On June 16, 2004, Appellant filed its "Verified Petition for Preliminary Injunction" against Respondent. In its petition, Appellant stated, in part, that

7. Eight to ten trees have grown on top of the pipeline or within ten (10) feet of [Appellant's] pipeline, and [Respondent] has placed a mobile home on top of the pipeline or within thirty-three (33) feet of [Appellant's] pipeline on the Subject Property. . . .

8. Such trees and mobile home located on top of or very near [Appellant's] pipeline materially interfere with [Appellant's] maintenance and inspection of the Easement, and pose a grave threat to public safety, as follows: (a) [Appellant] monitors the pipeline through overhead, aerial inspections. The location of trees and of [Respondent's] mobile home on top of the pipeline significantly impairs [Appellant's] surveillance of the pipeline and ability to monitor the integrity of the pipeline; (b) such obstructions necessarily make it significantly more difficult for [Appellant's] personnel to access and excavate the pipeline, valves, and appurtenances for repairs and routine maintenance; and (c) the trees at issue are a type that has a tendency to topple over from dryness or wind, bringing large root balls up with them and possibly creating a dangerous situation and/or jeopardizing the integrity of the pipeline.

The petition also sets out that "[t]he trees and mobile home referenced above materially and substantially interfere with [Appellant's] [e]asement rights and its ability to properly monitor, inspect and maintain its pipeline, and pose a grave threat to public safety ..." and that the trees and mobile home "may cause irreparable harm to [Appellant]." Appellant prayed that the trial court would enter an injunction "[r]estraining and enjoining [Respondent] . . . from interfering in any manner with [Appellant's] removal of the eight to ten trees and of [Respondent's] mobile home from on top of [Appellant's] pipeline, or within thirty-three (33) feet thereof. . . ."² Appellant also prayed that Respondent be permitted thirty days in which to voluntarily move the mobile home, and that if Respondent did not comply within that time frame, Appellant would thereafter be permitted to re-locate the mobile home itself. Appellant also sought the trial court's grant of a "temporary restraining order to the same effect."

Following a hearing on the temporary restraining order, on June 16, 2004, the trial court granted Appellant's request and ordered that Respondent be prohibited from interfering with the removal of the trees, and that he had until July 14, 2004, to move the mobile home voluntarily. The temporary restraining order was later dissolved by the trial court on October 4, 2004.

In his answer to Appellant's petition, Respondent raised the affirmative defense of estoppel and asserted the trees and mobile home had been in the same location for...