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Columbia Gas Transmission, LLC v. Grove Avenue Developers Inc.

United States District Court, E.D. Virginia, Norfolk Division

January 8, 2019

COLUMBIA GAS TRANSMISSION, LLC, Plaintiff,
v.
GROVE AVENUE DEVELOPERS, INC., Defendant.

          OPINION AND ORDER

          MARK S. DAVIS, CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court following a bench trial resulting from an easement dispute in which both parties seek a declaratory judgment. Such dispute arises from Grove Avenue Developers, Inc.'s ("Grove" or "Defendant") desire to construct an asphalt roadway crossing over two high pressure natural gas pipelines (the "Pipelines") operated by Columbia Gas Transmission, LLC ("Columbia" or "Plaintiff"). Columbia filed the instant action seeking an injunction and declaratory judgment prohibiting Grove from building the planned roadway across Columbia's easement. Grove, in turn, seeks a declaration that it be allowed to construct the proposed roadway because such crossing does not unreasonably interfere with Columbia's easement rights.

         I. Findings of Fact

         A. Preliminary Summary

         It is undisputed that the real property that Grove seeks to develop into a small condominium complex is owned by Grove subject to Columbia's easement to "lay, maintain, operate and remove a pipe line, or pipe lines." ECF No. 20-2. Although Columbia is the holder of the dominant estate, the terms of the written easement require Columbia to maintain its Pipelines "below cultivation, so that the Grantors may fully use and enjoy the premises, subject to the right of the Grantee to maintain and operate said line or lines." Id.

         Notwithstanding Columbia's view that it has the authority to categorically prohibit Grove (and presumably other landowners) from constructing any roads across Columbia's buried transmission pipelines, Columbia is willing to allow a crossing on Grove's property, but only if Grove first agrees to pay for the following costly mitigation measures:[1] (1) excavation of the Pipelines passing under the proposed roadway; (2) removal of the Pipelines' protective coatings to allow a visual inspection of the Pipelines, followed by installation of new protective coatings; and (3) the installation of "flowable fill" over and around the excavated Pipelines.[2] Grove, however, maintains that the mitigation measures demanded by Columbia, which are estimated to cost several hundred thousand dollars, are unnecessary because the scientific evidence demonstrates that Grove's proposed crossing will not endanger the integrity of Columbia's buried Pipelines. Grove also disputes Columbia's contention that the road crossing proposed by Grove, by its nature, unreasonably interferes with Columbia's right to maintain, inspect, and repair its pipelines. Each party's trial evidence hinged, in large part, on the testimony of their respective expert witness.

         B. Stipulated Facts[3]

         1. Columbia is a Delaware limited liability company . . . [that] maintains and operates approximately 15, 000 miles of natural gas transmission pipeline throughout the country, including hundreds of miles of pipeline in Virginia.

         2. Grove Avenue is a Virginia corporation . . . [that] owns certain land in the City of Suffolk, Virginia (the “Property").

         3. Grove Avenue acquired ownership of the Property by deed.

         4. On or about October 12, 1950, Victoria Rountree ("Ms. Rountree") and Commonwealth Natural Gas Corporation ("Commonwealth") executed an agreement granting Commonwealth a right of way through the Property for the installation, operation and maintenance of one or more pipelines (the "Easement") in exchange for the payment of $568.00.

         5. On or about November 16, 1964, Commonwealth and Rountree Dairy, Inc., the then-owner of the Property ("Rountree Dairy," together with Ms. Rountree, the "Original Grantors") entered into a modification agreement clarifying the width and location of the easement created under the Right of Way Agreement.

         6. The Right of Way Agreement and the Modification Agreement (together, the "ROW Agreements") created a valid and enforceable Easement and right-of-way across the Property.

         7. Columbia is the successor-in-interest to Commonwealth under the ROW Agreements and, therefore, possesses all the rights of Commonwealth under the ROW Agreements.

         8. Grove Avenue is the successor-in-interest to the Original Grantors under the ROW Agreements with respect to the Property and, therefore, possesses all the rights of the Original Grantors under the ROW Agreements.

         9. The Easement is 80 feet in width and runs parallel to Hillpoint Boulevard along the northern edge of the Property.

         10. Pursuant to the ROW Agreements, Columbia operates and maintains two high pressure natural gas transmission pipelines known as Lines VM107 and VM108 (the "Pipelines").

         11. VM107 was installed in or about 1950 and VM108 was installed in or about 1961.

         12. Line VM107 is a twelve (12) inch in diameter high-pressure natural gas transmission pipeline.

         13. Line VM108 is a sixteen (16) inch in diameter high-pressure natural gas transmission pipeline.

         14. Line VM107 and Line VM108 were installed below cultivation on the Property and are within the width of the Easement.

         15. The Pipelines are a substantial source for the delivery of natural gas to the Tidewater area of Virginia.

         16. Columbia's daily revenue from the operation of the Pipelines exceeds $45, 000.00.

         17. The segment of the Pipelines at issue in this case is a "high consequence area" as described by 49 CFR § 192.903.

         18. Grove Avenue intends to engage in certain construction activities, including the construction of a twenty-six (26) foot wide paved asphalt roadway crossing over the Pipelines and the installation of a water line under the Pipelines (collectively, the "Construction Activities").[4]

         19. The Construction Activities are part of Grove Avenue's planned 17-unit housing development to be known as Addison Place Condominiums.

         20. Based on the available data concerning the condition of the Pipelines, it is Columbia's contention that no work is currently required on the Pipelines absent the proposed construction of a road by Grove Avenue.

         C. Facts Determined by the Court as Factfinder

         1. Testing Protocol & Repairs

         21. Columbia performs various testing procedures to monitor the integrity of its Pipelines, including aerial surveillance, ground surveillance, testing of the "cathodic protection system" designed to prevent the steel Pipelines from corroding, and “pig” surveys that inspect and test the Pipelines from the inside.

         22. Columbia obtains the most detailed Pipeline integrity information through the use of a "smart pig," which is an in-line inspection tool that is run through the inside of the Pipelines every seven years to gather information on anomalies such as dents, cracks, wall loss from corrosion, and manufacturing defects. Columbia's Pipelines on the Property were last "pigged" in 2013 and 2014.

         23. The Pipelines' "cathodic protection" system is tested at defined monitoring stations (none of which are located at the proposed crossing), and it can also be tested through a “close interval survey" where a corrosion technician walks along the pipeline and takes a soil reading every four to ten feet to ensure that the cathodic protection system is functioning properly. Such close interval testing could not be conducted on the twenty-six foot stretch of the Pipelines that would be covered by the asphalt crossing unless the technician first drilled through the asphalt.

         24. The trial record indicates that Columbia complies with federal testing requirements by performing a close-interval test on each side of road crossings, and if testing under a road becomes necessary, a hole can be drilled through the asphalt. Columbia failed to demonstrate that such drilling procedure, in the unlikely event that it becomes necessary, is time consuming or expensive, with Columbia's expert acknowledging that the corrosion technicians have the capability to test the soil under an asphalt road by drilling any necessary holes.

         25. The proposed twenty-six-foot-wide asphalt crossing would have virtually no impact on the majority of Columbia's testing procedures, as aerial surveillance, ground surveillance, cathodic testing at defined stations, and “pig" testing could all proceed unimpacted; moreover, the minimal impact to the “close interval surveys" are just that, minimal.

         26. Although Columbia presented some evidence regarding the risks of delayed leak detection and/or gas "migration" should a leak occur under the proposed road, Columbia's case-specific evidence regarding these risks was both limited and uncompelling.

         27. Despite the fact that the two cathodically protected Pipelines have been in the ground for approximately 60-70 years, there has never been a need for Columbia to access, repair, or physically inspect the Pipelines on Grove's Property. Additionally, every test that Columbia has performed on this section of the Pipelines over the past several years, including the most recent "pig" surveys, revealed that the Pipelines are in good condition and do not require any repairs (although the "pig" data is approximately five years old).

         28. Based on the testimony of Columbia's expert, Andrew Kvasnicka ("Mr. Kvasnicka"), if an "emergency" repair was necessary under the asphalt road proposed by Grove, it could take Columbia several hours longer to secure the necessary equipment and personnel than it would take to secure the same for excavation in an open field. Such delay is difficult to pinpoint as it would depend on various factors, but it could be approximately four hours. That said, in over twenty years in the industry, and having been involved in approximately sixty "digs" under asphalt roads, Mr. Kvasnicka cannot recall a single “emergency" unscheduled dig under an asphalt road, meaning that the equipment and personnel have always been scheduled in advance.

         29. Based on Mr. Kvasnicka's testimony, once the necessary equipment and personnel are on site, the roadway proposed by Grove would delay accessing the Pipelines by approximately four hours, as additional ...


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