RICHARD A. PRESSL; THERESA PRESSL, Plaintiffs-Appellants,
APPALACHIAN POWER COMPANY, Defendant-Appellee.
Argued: October 26, 2016
from the United States District Court for the Western
District of Virginia, at Roanoke. Norman K. Moon, Senior
District Judge. (7:15-cv-00343-NKM-RSB)
Frederick Watson, CASKIE & FROST, P.C., Lynchburg,
Virginia, for Appellants.
Kenneth Friedman, Matthew Patrick Warren Pritts, WOODS
ROGERS, PLC, Roanoke, Virginia, for Appellee.
Pavlina B. Dirom, CASKIE & FROST, P.C., Lynchburg,
Virginia, for Appellants.
Carter Lee, WOODS ROGERS, PLC, Roanoke, Virginia, for
MOTZ, TRAXLER, and FLOYD, Circuit Judges.
and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Traxler and Judge Floyd joined.
GRIBBON MOTZ, CIRCUIT JUDGE.
brought this action in state court seeking a declaration of
their rights to build a dock on property subject to a flowage
easement. After the power company, which owns the easement,
removed the case to federal court, the landowners sought to
remand the case to state court. The district court denied the
motion to remand and then dismissed the landowners'
complaint. Because the district court lacked subject matter
jurisdiction, we must vacate and remand.
A. Pressl and Theresa Pressl own property adjacent to Smith
Mountain Lake in Franklin County, Virginia. They own about
two and a half acres of land sitting more than 800 feet above
median sea level. The Pressls also own half an acre of
adjoining land below the 800-foot elevation contour. They
acquired the property subject to a flowage easement that the
Pressls' predecessors in interest granted in 1960 to
Appalachian Power Company ("APCO").
flowage easement recites APCO's intention to construct a
dam and operate a hydroelectric power station at Smith
Mountain. It provides that the elevation of the impounded
waters the dam creates generally would not exceed 800 feet.
The easement grants APCO the right to:
overflow and/or affect so much of said premises as may be
overflowed and/or affected, continuously or from time to time
in any manner whatsoever, as the result of the construction,
existence, operation and/or maintenance of the aforesaid dam
and/or power station, the impounding of the waters of
[Roanoke] river and tributaries and/or the varying of the
level of the so impounded waters by reason of the operation
of said power station, including any pumping as part of such
easement also gives APCO the right to:
enter upon said premises at any time and from time to time
and, at Appalachian's discretion, to cut, burn and/or
remove therefrom any and all buildings, structures,
improvements, trees, bushes, driftwood and other objects and
debris of any and every kind or description which are or may
hereafter be located on the ...