Vandiver v. Transcontinental Gas Pipe Line Corporation, Civ. A. No. 528.

• Decision Date: 12 September 1963
• Docket Number: Civ. A. No. 528.
• Citation: 222 F. Supp. 731
• Parties: J. W. VANDIVER, Plaintiff, v. TRANSCONTINENTAL GAS PIPE LINE CORPORATION, Defendant.
• Court: U.S. District Court — Middle District of Georgia

222 F. Supp. 731

J. W. VANDIVER, Plaintiff, v. TRANSCONTINENTAL GAS PIPE LINE CORPORATION, Defendant.

Civ. A. No. 528.

United States District Court M. D. Georgia, Athens Division.

September 12, 1963.

Robert J. Reed, Darrell W. MacIntyre, Gainesville, Ga., Mark Dunahoo, Winder, Ga., for plaintiff.

Allen Post, Hansell, Post, Brandon & Dorsey, Atlanta, Howell C. Erwin, Jr., Erwin, Birchmore & Epting, Athens, Ga., for defendant.

BOOTLE, Chief Judge.

For decision now, upon briefs filed, is defendant's motion to dismiss plaintiff's complaint seeking a declaration as to the title and interest of plaintiff and defendant in lands covered by right of way agreement executed by plaintiff in favor of defendant on May 10, 1949, which shows that for a consideration of One Hundred ($100.00) Dollars received by plaintiff, plaintiff sold and conveyed to defendant:

"A right of way and easement for the purposes of laying, constructing, maintaining, operating, repairing, altering, replacing and removing pipe lines (with valves, regulators, meters, fittings, appliances, tie-overs, and appurtenant facilities) for the transportation of gas, oil, petroleum products, or any other liquids, gases, or substances which can be transported through a pipe line, the grantee to have the right to select the route, under, upon, over, through and across the lands of grantor" (here follows description of lands).

"There is included in this grant the right, from time to time, to lay, construct, maintain, operate, alter, repair, remove, change the size of, and replace one or more additional lines of pipe approximately parallel with the first pipe line laid by Grantee hereunder; but for any such additional line so laid the Grantee shall pay Grantor, or the depository hereinafter designated, a sum equivalent to One Dollar ($1.00) per lineal rod of such additional line, or such proportionate part thereof as Grantor's interest in said lands bears to the entire fee, within sixty (60) days subsequent to the completion of the construction of such additional line.

"The Grantee shall have all other rights and benefits necessary or convenient for the full enjoyment or use of the rights herein granted, including, but without limiting the same to, the free and full right of ingress and egress over and across said lands and other lands of the Grantor to and from said right of way and easement, and the right from time to time to cut all trees, undergrowth and other obstructions that may injure, endanger or interfere with the construction, operation, maintenance and repair of said pipe lines. The Grantee shall have the right to assign this grant in whole or in part."

Then, by the right of way agreement the plaintiff warranted the title to said premises unto defendant, and the agreement continued:

"The Grantee agrees to bury all pipe lines so that they will not interfere with the cultivation of the land, and also to pay for any damage to fences, improvements, growing crops and timber which may arise from laying, constructing, altering, repairing, removing, changing the size of and replacing such pipe lines; said damage, if not mutually agreed upon, to be ascertained and determined by three disinterested persons; one to be appointed by the undersigned Grantor, his successors, heirs or assigns; one by the Grantee, its successors or assigns; and the third by the two persons aforesaid, and the written award of such three persons, or any two of them, shall be final and conclusive."

Then the agreement concluded with a stipulation that payments due thereunder may be made direct to plaintiff, or, at defendant's option, deposited in a named bank, and with a final stipulation that "this grant covers all the agreements between the parties and no representations or statements, verbal or written, have been made modifying, adding to, or changing the terms of this agreement."

The complaint alleges that there had been laid under the agreement three pipe lines, the first in 1949, the second in 1955, to the latter of which plaintiff objected but that he later condoned the same and concluded a settlement with defendant with respect thereto, and the third, in November, 1961, to which plaintiff objected and still objects; that in connection with the first pipe line defendant keeps open a 50 foot strip, that in connection with the second pipe line it also keeps open an additional 50 foot strip to the east of the first, and that in connection with the third pipe line defendant claims the right to keep open a third 50 foot strip to the east of the second, these lines being parallel, the one to the other.

The complaint alleges that the agreement did not authorize the defendant to lay the third pipe line, and seeks a declaration that the right of way agreement is void for lack of consideration, for uncertainty, and as an attempt to create a perpetual option in violation of the rule against perpetuities, and, as above stated, seeks "a binding declaration as to the title and interest of your petitioner and the defendant in said lands."

The motion to dismiss is based upon the ground, among others, that the right of way agreement is clear and unambiguous, and is plainly valid as against the attacks made upon it, and that, therefore, no declaratory judgment is appropriate since there is no room for reasonable question as to rights of the parties, and that, therefore, the complaint should be dismissed.

After careful consideration of the briefs submitted and study of the authorities cited and some others, this court agrees with defendant's contention.

There is a permissible element of judicial discretion in granting or withholding declaratory relief. Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952); Central of Georgia Railway Co. v. Brotherhood of Locomotive Engineers, 191 F.Supp. 666, 668 (M.D.Ga.1960). Significantly, the Georgia statute authorizing...