Construction Law Insights

Columbia Gas Transmission, LLC v. Grove Ave. Developers, Inc., 2018 US Dist. LEXIS 140942 (E.D. Va. Aug. 10, 2018)

Grove Avenue Developers, Inc. (“Grove”) sought to develop a property into a small condominium complex. The property was subject to Columbia Gas Transmission, LLC’s (“Columbia”) easement to lay, maintain, operate, and remove pipelines. Columbia’s easement required Columbia to maintain its pipeline “below cultivation, so that the Grantors may fully use and enjoy the premises. . .” Although Columbia did not prohibit Grove from constructing an asphalt roadway crossing over its two gas lines installed below cultivation, Columbia sought to require Grove to pay for costly pipeline “improvements” before the road was constructed, including excavation, inspection, application of new protective coatings, and installation of a special ground fill material to protect the pipelines from future damage based on the weight of crossing vehicular traffic.

As to the relative rights of Columbia and Grove as the respective owners of the dominant and servient estates, the Supreme Court of Virginia has explained as follows: “Under well-settled principles, a conveyance of an easement that is non-exclusive does not strip the servient landowner of its right to all use of the land. The servient landowner retains the right to use its property in any manner that does not unreasonably interfere with the lawful dominant use. The servient landowner's right to reasonably use the land includes the right to grant to others additional easements to use the same land so long as the additional uses are not unreasonably burdensome or inconsistent with the existing dominant uses of the easement. The party alleging such an unreasonably burdensome or inconsistent use has the burden of proving this allegation.” (emphasis in original). Numerous federal and state authorities support Columbia’s contention that if the case-specific evidence demonstrates that a proposed roadway requires a pipeline to be relocated, buried deeper, encased, or otherwise protected in order to avoid damage from vehicular traffic, the cost must be borne by the developer. According to the Magistrate, however, the applicability of such cases is predicated on yet to be determined critical factual issues in the case (i.e. whether Grove’s proposed asphalt road would cause a danger to the pipelines requiring the pipelines to be buried deeper or otherwise protected in order to avoid damage from vehicular traffic). Additionally, even if additional precautions were necessary, factual disputes remained as to the scope/cost of the precautionary measures. As such, the Magistrate denied the cross-motions for summary judgment. 

PLDR Law Mark Burgin 1 PLDR Law Scott Kowalski 1 Wolf Tom v2 Stout Kenneth 2016

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