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Pressl v. Appalachian Power Co.

United States Court of Appeals, Fourth Circuit

November 21, 2016

RICHARD A. PRESSL; THERESA PRESSL, Plaintiffs-Appellants,
v.
APPALACHIAN POWER COMPANY, Defendant-Appellee.

          Argued: October 26, 2016

         Appeal 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)

         ARGUED:

          James Frederick Watson, CASKIE & FROST, P.C., Lynchburg, Virginia, for Appellants.

          Frank Kenneth Friedman, Matthew Patrick Warren Pritts, WOODS ROGERS, PLC, Roanoke, Virginia, for Appellee.

         ON BRIEF:

          Pavlina B. Dirom, CASKIE & FROST, P.C., Lynchburg, Virginia, for Appellants.

          C. Carter Lee, WOODS ROGERS, PLC, Roanoke, Virginia, for Appellee.

          Before MOTZ, TRAXLER, and FLOYD, Circuit Judges.

         Vacated and remanded by published opinion. Judge Motz wrote the opinion, in which Judge Traxler and Judge Floyd joined.

          DIANA GRIBBON MOTZ, CIRCUIT JUDGE.

         Landowners 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.

         I.

         Richard 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").

         The 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 operation.

         The 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 ...

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