Columbia Gas Transmission, LLC v. Haas

409 F.Supp.3d 420

COLUMBIA GAS TRANSMISSION, LLC, Plaintiff,

v.Janet Malin HAAS and Melvin Leroy Haas, Defendants.

Civil Action No. TDC-17-1147

United States District Court, D. Maryland.

Signed August August 19, 2019

Filed August 21, 2019

Brent R. Gary, Reed Smith LLP, McLean, VA, Michael S. Dingman, Pro Hac Vice, Reed Smith LLP, Falls Church, VA, for Plaintiff.

Bradshaw Rost, Tenenbaum and Saas PC, Chevy Chase, MD, for Defendants.

MEMORANDUM OPINION

THEODORE D. CHUANG, United States District Judge

Plaintiff Columbia Gas Transmission, LLC ("Columbia") filed this breach of contract action against Defendants Janet Malin Haas and Melvin Leroy Haas ("the Haases") to enforce an easement traversing Defendants' residential property. Columbia asserts that a Japanese maple tree planted near an underground gas pipeline owned by Columbia must be removed under the terms of the easement. Defendants oppose the removal of the tree and have also filed a Counterclaim in which they assert that if the tree is removed, Defendants should be compensated for its loss. After granting summary judgment to Columbia on the issue of the width of the easement and finding it to be 50-feet wide, the Court conducted a three-day bench trial to determine liability and damages on all remaining issues. Pursuant to Federal Rule of Civil Procedure 52(a), the Court now provides its findings of fact and conclusions of law. For the reasons set forth below, the Court finds that Columbia has not met its burden of proof and will enter judgment for Defendants.

FINDINGS OF FACT

At trial on May 22, 23, and 24, 2019, the following witnesses testified: Karen Stephenson, Columbia's corporate representative and manager of its right-of-way maintenance program; Antonio Redd, a senior land agent for Columbia; Francis Stone, a former welder and transmission mechanic for Columbia; William Rew, a former corrosion technician for Columbia; Andrew Kvasnicka, a pipeline engineer for Columbia, who was qualified as an expert in pipeline safety and operations; Lewis Bloch, who was qualified as an expert arborist; Donald Zimar, who was also qualified as an expert arborist; John Kelly Lewis, the general manager of Ruppert Nurseries, who was qualified as an expert on tree valuation, tree roots, and the removal of trees; Leonard Murphy, the Haases' family attorney; and both Mr. and Mrs. Haas. Based on the witness testimony, as well as documentary exhibits offered by both parties, the Court finds the following facts.

I. History

On February 21, 1955, Columbia's predecessor in interest, Atlantic Seaboard Corporation, was granted an easement pursuant to a Right of Way Agreement ("ROW Agreement") relating to the real property now located at 421 Brighton Knolls Drive, Brinklow, Maryland 20862 ("the Property"). The easement is 50 feet wide: 25 feet on either side of a natural gas transmission pipeline. The ROW Agreement states, in pertinent part:

It is agreed that the gas line to be laid under this grant shall be constructed and maintained below cultivation, so that Grantors may fully use and enjoy the premises, subject to the rights of the Grantee to maintain and operate said lines.

Also where necessary and convenient, Grantee may haul over the above described lands such pipe and material needed in the construction of the lines on adjoining lands.

Grantee further agrees to pay for any damages that may arise from the maintenance, operation and removal of said lines.

Trial Exhibit ("Ex.") 1. Pursuant to the ROW Agreement, in 1955, Columbia's predecessor installed within the easement a 26-inch high-pressure natural gas transmission pipeline known as Line MB 26 ("the Pipeline"). The Pipeline has operated continuously since 1955 and delivers natural gas to Pennsylvania, Maryland, Virginia, and Washington, D.C.

The Haases purchased the Property on March 27, 1975 and received a copy of the ROW Agreement. On July 12, 1976, they had a Japanese red maple tree ("the Maple Tree") planted within the easement. Mr. Haas grew up on a farm and has a passion for landscaping. He has spent thousands of dollars on landscaping the Property and has spent and continues to spend countless hours every week gardening, performing yardwork, and otherwise working on the landscaping of the Property. The Maple Tree is the centerpiece of its front yard.

For 40 years, Columbia never contacted the Haases regarding the Maple Tree. In May 2010, the Haases received a letter from Columbia, specifically from Redd, stating that Columbia would be conducting vegetation clearing operations in the easement, but no one from Columbia ever followed up. In October 2016, the Haases received another letter from Columbia stating that Columbia would soon begin clearing vegetation, but again no one from Columbia followed up or visited the Property. Finally, in March 2017, Columbia put a flyer on the Haases' door informing them that vegetation clearing in the easement would begin imminently. Soon after, Mr. Haas spotted Columbia employees on his neighbor's property and went to speak to them. The foreman informed Mr. Haas that they would be removing trees, including on the Property. When Mr. Haas objected to the removal of any trees on the Property, the foreman suggested that if Mr. Haas was concerned, he should contact Columbia.

Mr. Haas promptly contacted Columbia and requested that a Columbia representative come out to view the Maple Tree and see that it did not interfere with the Pipeline. After several communications, Mr. Haas was referred to Stephenson. After much insistence, he convinced her to visit the Property. During a visit on March 24, 2017, Stephenson, Redd and another Columbia employee rejected Mr. Haas's pleas not to remove the Maple Tree and insisted that it had to be removed based on Columbia's policy. Redd told Mr. Haas that they would be coming on "Monday or Tuesday to remove your tree." 5/24/19 Tr. at 20-21. On March 30, 2017, as soon as Mr. Haas saw Redd's vehicle and a truck driving up to the Property, he called the police. Redd got out of the vehicle and told Mr. Haas they were there to remove the tree, but Mr. Haas told him to stay back and that he had called the police. Only when police officers arrived and directed the Columbia personnel to leave the premises did they desist in their efforts to cut down the Maple Tree that day. Columbia then filed the instant action seeking a court order authorizing Columbia to remove the Maple Tree.

II. Location of the Pipeline

A. Proximity to the Maple Tree

The Court finds that the Pipeline runs through the Property and passes approximately two feet away from the trunk of the Maple Tree, with the Pipeline passing near, but not directly under, the trunk of the Maple Tree. The parties have stipulated that the Maple Tree is located 23 feet from the corner of the Haases' house ("the House"), and that the corner of the House is located within 25 feet from the Pipeline. This approximate two-foot distance is consistent with markers located at the Property. According to Redd, in the vicinity of the Maple Tree, there are two pipeline markers, installed by Columbia, which mark the centerline of the Pipeline. Based on these markers, a yellow flag, visible in various photographs admitted as exhibits, was placed along that centerline at the edge of the mulch bed. Together, these three markers mark the centerline and direction of the Pipeline. On May 17, 2019, at Defendants' request and with the assent of Columbia, the Court conducted a View of the Property. It was shown these three markers, and observed, by standing at a location on a straight line between the two pipeline markers and noting the location of the yellow flag along that line, that the center line of the Pipeline passes approximately two feet to the south of the trunk of the Maple Tree, on the side of the tree away from the House. Redd, Columbia's representative at the View, agreed that the Pipeline ran near, but not directly under, the trunk of the Maple Tree. Because the Pipeline is 26 inches in diameter, with 13 inches on each side of the centerline, no part of the Pipeline passes directly under the trunk.

In reaching this conclusion, the Court does not credit Columbia's claim that the Pipeline runs directly under the trunk of the Maple Tree. Columbia argues that the 23-foot distance from the House to the Maple Tree runs to the side of the trunk closest to the House, the 25-foot distance to the Pipeline runs to its centerline, and the Maple Tree trunk is 17-inches wide, such that some portion of the trunk must pass over some portion of the Pipeline. The evidence at trial, however, was insufficiently precise to support this conclusion. Kvasnicka testified that the 25-foot measurement was based on the Columbia land department's review of the plat of the dwelling, but no witness who actually took that measurement testified, and the plat introduced as evidence lacks sufficient detail and resolution to be of any value on this question. Likewise, although Kvasnicka testified that Mr. Haas had measured the Maple Tree at 23 feet from the House, Mr. Haas stated in his deposition, admitted at trial, that his measurements were "approximate." Haas Dep. at 4, Ex. 18. Crucially, there was no evidence of how and at what angle either of the measurements were taken. If both measurements were not taken along the same line from the corner of the House, their two-foot difference in distance would not necessarily translate to a two-foot difference between the side of the trunk closest to the House and the centerline of the Pipeline. This lack of precision in measurements was a recurrent trend at trial.

Although Kvasnicka and Redd testified at various times that the Maple Tree was right on top of the Pipeline, the Court does not find this testimony reliable or credible, to the extent that it could be interpreted as stating that the trunk is directly over the Pipeline. Kvasnicka gave inconsistent testimony, at one point claiming the Maple Tree was "on top" of...