Gas Company Wins Tree-Removal Dispute

October 14, 2008 | Roger McEowen


An owner of property that is subject to an easement may try to claim that an easement has been extinguished because the holder of the easement has abandoned the easement. But, lack of use of an easement does not normally amount to abandonment and the right to use the easement will remain even if it has not been used for a very long time.   Instead, abandonment can only occur if the holder of the easement demonstrates that the easement holder has done something to positively signify intent to permanently abandon the easement.  The issue of easement abandonment was at the heart of this case.

The United States Court of Appeals for the Sixth Circuit has ruled that a gas company has the right to clear an 80-foot swath of trees on an Ohio couple's property in order to maintain its pipelines, despite having ignored the easement for more than 60 years.

The defendant gas company inherited a 1947 easement to lay two pipelines on the plaintiffs’ property, which allowed the company "to maintain, operate, repair, replace and remove" those lines.  The easement specifically stated that it applied to the original easement holder’s successors and assigns.  In 1947, the original easement holder installed a large high-pressure underground natural gas transmission pipeline through the property.  A second, larger pipeline, was installed in 1957 and runs parallel to the first line about 30 feet away.  By virtue of a corporate merger, the defendant succeeded to the interest in the easement.  In the late 1960s, the then owner of the property unknowingly planted pine trees within 25 feet of the 1947 pipeline.  The plaintiffs bought the property in 2000 with full knowledge of the 1947 easement, but said they were attracted to the property, at least in part, because of the pine trees that were now fully matured.

The defendant made no efforts to clear a right of way around its pipelines until June 2004, when a work crew told the plaintiffs that they needed to remove a stand of pine trees on his property.  The plaintiffs objected, claiming that decades of inaction caused the gas company to waive its easement.  In essence, the plaintiffs argued that the defendant had "acquiesced" to the trees.  The trial court determined that a 50 foot right-of-way was necessary for each pipeline and was consistent with the language of the 1947 easement, and ruled that the plaintiffs were not entitled to compensation for removal of the trees because the easement only provided recovery for damage to “crops” and fences.  The plaintiffs appealed.

On appeal, the plaintiffs challenged the trial court’s establishment of a 50-foot right of way for each pipeline on the basis that the 1947 agreement never specified the width of the easement.   They claimed that the defendant had no right to clear 25 feet on one side of each pipeline and the 30 feet between the lines, the Andrews claimed.  But, the appellate court concluded that the 50-foot right of way for each pipeline was "reasonably necessary and convenient."  The court reasoned that  “[I]f the agreement granted such a right of way, Columbia Gas was not obligated to give specific reasons for acting within its rights."  Under Ohio law, the owner of an easement can remove objects that "unreasonably interfere with or obstruct its reasonable or proper use." The court added that Columbia Gas never forfeited this right, despite years of inaction.  "[T]he fact that the company did nothing ... is not fatal," the court stated.

An issue not squarely addressed by the court, however, is the notion that an easement can also be terminated by estoppel.  Under that theory, some courts hold that the non-use of an easement for a long period of time coupled with the landowner then building something on the easement (or planting trees, for example) easement would result in the easement being terminated by estoppel and the easement holder not being able to reassert the existence of the easement after the item has been built (or the trees have been planted).  In this case, the easement was obtained in 1947, a second pipeline was laid in 1957 and the trees were planted in 1960.  Certainly, the timeframe from 1957 to 1960 is not a long period of time, but not using the easement for over 40 years from that point would seem to constitute estoppel.  But, the court said that the defendant’s lack of action, without more, did not cause the easement to end.  Andrews v. Columbia Gas Transmission Corporation, No. 07-3632, 2008 U.S. App. LEXIS 21199 (6th Cir. Oct. 10, 2008).