United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
S. DAVIS, CHIEF UNITED STATES DISTRICT JUDGE
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.
Findings of Fact
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."
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) 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. 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.
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.
Grove Avenue is a Virginia corporation . . . [that] owns
certain land in the City of Suffolk, Virginia (the
Grove Avenue acquired ownership of the Property by deed.
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.
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.
Right of Way Agreement and the Modification Agreement
(together, the "ROW Agreements") created a valid
and enforceable Easement and right-of-way across the
Columbia is the successor-in-interest to Commonwealth under
the ROW Agreements and, therefore, possesses all the rights
of Commonwealth under the ROW Agreements.
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.
Easement is 80 feet in width and runs parallel to Hillpoint
Boulevard along the northern edge of the Property.
Pursuant to the ROW Agreements, Columbia operates and
maintains two high pressure natural gas transmission
pipelines known as Lines VM107 and VM108 (the
VM107 was installed in or about 1950 and VM108 was installed
in or about 1961.
Line VM107 is a twelve (12) inch in diameter high-pressure
natural gas transmission pipeline.
Line VM108 is a sixteen (16) inch in diameter high-pressure
natural gas transmission pipeline.
Line VM107 and Line VM108 were installed below cultivation on
the Property and are within the width of the Easement.
Pipelines are a substantial source for the delivery of
natural gas to the Tidewater area of Virginia.
Columbia's daily revenue from the operation of the
Pipelines exceeds $45, 000.00.
segment of the Pipelines at issue in this case is a
"high consequence area" as described by 49 CFR
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
Construction Activities are part of Grove Avenue's
planned 17-unit housing development to be known as Addison
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.
Facts Determined by the Court as Factfinder
Testing Protocol & Repairs
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.
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.
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.
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.
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
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
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).
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.
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 ...