Close Armstrong, LLC v. Trunkline Gas Co.

667 F.Supp.3d 908

CLOSE ARMSTRONG, LLC, Plaintiff, v. TRUNKLINE GAS COMPANY, LLC, Defendant.

Randall L. Dickson and Jaymie L. Dickson, Plaintiffs, v. Trunkline Gas Company, LLC, Defendant.

CAUSE NO. 3:18cv270 DRL-MGG

Consolidated with CAUSE NO. 3:18cv494 DRL-MGG

United States District Court, N.D. Indiana, South Bend Division

Signed March 31, 2023

Janette E. Surrisi, Wyland Humphrey Clevenger & Surrisi LLP, Plymouth, IN, for Plaintiff Close Armstrong LLC in No. 3:18cv270.

A. Richard M. Blaiklock,Derek G. Raymond,Michael K. Hollingsworth,Ryan J. Vershay,Lewis Wagner LLP,Indianapolis, IN,for Defendant in No. 3:18cv270.

David L. Van Slyke, PHV, Pro Hac Vice, Plunkett Cooney PC, Columbus, OH, Melissa Lettiere, PHV, Plunkett Cooney PC, Chicago, IL, Pamela A. Paige, Plunkett Cooney PC, Indianapolis, IN, for Plaintiffs Randall L. Dickson, Jaymie L. Dickson in No. 3:18cv494.

A. Richard M. Blaiklock, Ryan J. Vershay, Derek G. Raymond, Lewis Wagner LLP, Indianapolis, IN, for Defendant in No. 3:18cv494.

OPINION AND ORDER

Damon R. Leichty, Judge

In 1959, Trunkline Gas Company, LLC acquired easement rights through hundreds of properties in northwest Indiana to install underground pipelines, including one that runs from the Gulf of Mexico to the Michigan border now called the 100 Line. Not knowing the exact trajectory of this interstate natural gas pipeline, Trunkline acquired what the law calls floating (or blanket) easements to permit the company to select a pathway, to move that line in the future as necessary, and ultimately to install additional pipelines elsewhere on the properties.

The 100 Line has existed since 1960. Two property owners—Randall and Jaymie Dickson and Close Armstrong, LLC—thereafter developed plans to place their land within the Agricultural Conservation Easement Program sponsored by the United States Department of Agriculture. Trunkline's easement rights interfered with this plan, so the landowners sued to fix to a precise location not just Trunkline's 100 Line but also its future rights to install additional pipelines or to move a pipeline. Today the court grants summary judgment for Trunkline, save for reserving for trial the singular question of the precise definition of the corridor for the 100 Line, as fixed by use.

BACKGROUND

Trunkline acquired its easement rights in 1959 by express grants. Predecessors in interest to both the Dicksons and Close Armstrong entered into the same right-of-way agreements with Trunkline in 1959 (only the names change):

KNOW ALL MEN BY THESE PRESENTS: that the undersigned, Leo A. Paull, and Vincent G. Paull, single, and as joint tenants, (hereinafter called GRANTOR, whether one or more), for and in consideration of one dollar in hand paid, receipt of which is hereby acknowledged, and the further consideration of one dollar ($1.00) per linear rod to be paid before the first pipe line is laid, does hereby grant, bargain, sell, convey, and warrant unto TRUNKLINE GAS COMPANY (a Natural Gas Company under the Act of Congress of June 21, 1938, 15 U.S.C.A. 717) a Delaware corporation, its successors and assigns (hereinafter called GRANTEE) a right of way and easement to construct, lay, maintain, operate, alter, repair, remove, change the size of, and replace one or more pipe lines and appurtenances thereto (including without limitation Cathodic Protection equipment) for the transportation of oil, gas, petroleum products or any other liquids, gases or substances which can be transported through pipe lines, the Grantee to have the right to select, change, or alter the routes of such pipe lines under, upon, over, and through lands which the undersigned owns or in which the undersigned has an interest, situated in the County of Starke, State of Indiana, described as follows:

[location omitted]

By the terms of this agreement, Grantee is granted the right to lay, construct, maintain, operate, alter, repair, remove, change the size of, and replace at any time or from time to time one or more additional lines of pipe and appurtenances thereto, said additional lines not to necessarily parallel any existing line laid under the terms of this agreement. Provided, however, that for each additional line laid after the first line is laid hereunder, Grantee shall pay Grantor, his heirs or assigns, one dollar ($1.00) per lineal rod of additional pipe line laid under, upon, over or through said hereinabove described property.

The Grantee, its successors and assigns, is hereby expressly given and granted the right to assign said right-of-way and easement herein granted and conveyed, or any part thereof, or interest therein. The same shall be divisible among two or more owners as to any right or rights granted hereunder so that each assignee or owner shall have the rights and privileges herein granted, to be owned and enjoyed either in common or in severalty.

TO HAVE AND TO HOLD unto the Grantee, its successors and assigns, with ingress to and egress from the premises for the purposes herein granted.

The said Grantor may fully use and enjoy said premises except for the purposes herein granted to the said Grantee and provided the said Grantor shall not construct or permit to be constructed any house, structures or obstructions on or over or that will interfere with the construction, maintenance or operation of any pipe line or appurtenances constructed hereunder and will not change the grade of such pipe line.

Grantee hereby agrees to bury all pipes to a sufficient depth so as not to interfere with cultivation of the soil and agrees to pay for any damage to growing crops and fences which may arise from the construction, maintenance and operation of said lines. Said damage, if not mutually agreed upon, shall be ascertained and determined by three disinterested persons, one thereof to be appointed by said Grantor, one to be appointed by the Grantee, its successors or assigns, and the third to be chosen by the two persons appointed as aforesaid. The written award of such three persons shall be final and conclusive.

It is mutually understood and agreed that this agreement as written covers all the agreements and stipulations between the parties and that no representations or statements, oral or written, have been made modifying, adding to, or changing the terms hereof.

[other text omitted]

The parties recorded the agreements in the Starke County Recorder's Office. In 1960, Trunkline began installing its 100 Line—a 26-inch-high pressure natural gas pipeline that traverses both properties.

Shortly thereafter, Close Armstrong's predecessors in interest, Vincent and Leo Paull, signed a "stump agreement" that allowed Trunkline to bury stumps "beyond the limits of the sixty-six (66) foot right-of-way."¹ After the 100 Line's installation, it seems Trunkline cleared and largely maintained a corridor of 66 feet in width around it for inspection and maintenance. Trunkline conducted at least monthly aerial surveillance along the 100 Line. Trunkline has no recorded physical presence on the properties outside of the 66-foot corridor since the 100 Line's installation.

Close Armstrong's most recent predecessor in interest, Glenda Marshall, planted hundreds of trees on her property throughout the 1980s, 1990s, and 2000s near, and at times within the corridor Trunkline used to maintain the 100 Line. Ms. Marshall communicated with Trunkline representatives about the pipeline corridor and the company's need to clear trees. She was protective of her property and the trees she planted, and she resisted their removal for pipeline maintenance. At one point, she communicated that Trunkline representatives may no longer cross her land to get to the 100 Line.

During the late 1990s, a Trunkline representative noted trees within the "right-of-way" that needed to be cleared. He communicated the company's plan to Ms. Marshall: "This right of way agreement is defined as an open easement with additional pipeline rights. Trunkline [G]as Company limits construction to and maintains a right of way of 66 feet in width, 33 feet on both sides of the pipeline, when an open easement is involved. This footage has been established and is considered sufficient to maintain the required maintenance work on our pipeline." In a subsequent letter, the same representative reported similarly: "Normally, when we have an open easement such as the easement on your property, we maintain 33 feet on both sides of the pipeline . . . . [I]t was determined that there are four, 4" diameter trees within the 20 foot section to the north that we need to take out." During this series of correspondence, Ms. Marshall's attorney wrote to Trunkline and said, "the Marshalls believe it is necessary for Trunkline and them to agree [ ] at this time to the extent of any easement on the property."

Chet Marshall, Glenda Marshall's son, obtained the property through a trust and thereafter deeded the land to Close Armstrong (a two-member company with Chet Marshall as one member) after its formation in January 2017. The Dicksons purchased their property in 2013 with the intent to create a conservation habitat. Both landowners today want to grant an Agricultural Conservation Easement to the United States Department of Agriculture (USDA).² As a condition to the USDA's approval, the USDA required a 60-year title examination. The title work revealed the existence of Trunkline's right-of-way agreements establishing floating easements on both properties. The USDA would not accept the properties into the conservation program with these easement rights.

Both properties contain acres of wetland with large amounts of surface water. Weather and wildlife affect the surface water levels on the properties. In 2014 and 2015, the landowners attempted to influence the amount of surface water by installing a "leveler," which allowed water to flow through beaver-created dams on their properties. The landowners argue this reduced the surface water on the property, whereas Trunkline argues it encouraged the...