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Columbia Gas Transmission, LLC v. Haas

United States District Court, D. Maryland

August 19, 2019

COLUMBIA GAS TRANSMISSION, LLC, Plaintiff,
v.
JANET MALIN HAAS and MELVIN LEROY HAAS, Defendants.

          MEMORANDUM OPINION

          THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE.

         Plaintiff Columbia Gas Transmission, LLC ("Columbia") filed this breach of contract action against Defendants Janet Malin Haas and Melvin Leroy Haas ("the Haases") to enforce an easement traversing Defendants' residential property. Columbia asserts that a Japanese maple tree planted near an underground gas pipeline owned by Columbia must be removed under the terms of the easement. Defendants oppose the removal of the tree and have also filed a Counterclaim in which they assert that if the tree is removed, Defendants should be compensated for its loss. After granting summary judgment to Columbia on the issue of the width of the easement and finding it to be 50-feet wide, the Court conducted a three-day bench trial to determine liability and damages on all remaining issues. Pursuant to Federal Rule of Civil Procedure 52(a), the Court now provides its findings of fact and conclusions of law. For the reasons set forth below, the Court finds that Columbia has not met its burden of proof and will enter judgment for Defendants.

         FINDINGS OF FACT

         At trial on May 22, 23, and 24, 2019, the following witnesses testified: Karen Stephenson, Columbia's corporate representative and manager of its right-of-way maintenance program; Antonio Redd, a senior land agent for Columbia; Francis Stone, a former welder and transmission mechanic for Columbia; William Rew, a former corrosion technician for Columbia; Andrew Kvasnicka, a pipeline engineer for Columbia, who was qualified as an expert in pipeline safety and operations; Lewis Bloch, who was qualified as an expert arborist; Donald Zimar, who was also qualified as an expert arborist; John Kelly Lewis, the general manager of Ruppert Nurseries, who was qualified as an expert on tree valuation, tree roots, and the removal of trees; Leonard Murphy, the Haases' family attorney; and both Mr. and Mrs. Haas. Based on the witness testimony, as well as documentary exhibits offered by both parties, the Court finds the following facts.

         I. History

         On February 21, 1955, Columbia's predecessor in interest, Atlantic Seaboard Corporation, was granted an easement pursuant to a Right of Way Agreement ("ROW Agreement") relating to the real property now located at 421 Brighton Knolls Drive, Brinklow, Maryland 20862 ("the Property"). The easement is 50 feet wide: 25 feet on either side of a natural gas transmission pipeline. The ROW Agreement states, in pertinent part:

It is agreed that the gas line to be laid under this grant shall be constructed and maintained below cultivation, so that Grantors may fully use and enjoy the premises, subject to the rights of the Grantee to maintain and operate said lines.
Also where necessary and convenient, Grantee may haul over the above described lands such pipe and material needed in the construction of the lines on adjoining lands.
Grantee further agrees to pay for any damages that may arise from the maintenance, operation and removal of said lines.

         Trial Exhibit ("Ex.") 1. Pursuant to the ROW Agreement, in 1955, Columbia's predecessor installed within the easement a 26-inch high-pressure natural gas transmission pipeline known as Line MB 26 ("the Pipeline")- The Pipeline has operated continuously since 1955 and delivers natural gas to Pennsylvania, Maryland, Virginia, and Washington, D.C.

         The Haases purchased the Property on March 27, 1975 and received a copy of the ROW Agreement. On July 12, 1976, they had a Japanese red maple tree ("the Maple Tree") planted within the easement. Mr. Haas grew up on a farm and has a passion for landscaping. He has spent thousands of dollars on landscaping the Property and has spent and continues to spend countless hours every week gardening, performing yardwork, and otherwise working on the landscaping of the Property. The Maple Tree is the centerpiece of its front yard.

         For 40 years, Columbia never contacted the Haases regarding the Maple Tree. In May 2010, the Haases received a letter from Columbia, specifically from Redd, stating that Columbia would be conducting vegetation clearing operations in the easement, but no one from Columbia ever followed up. In October 2016, the Haases received another letter from Columbia stating that Columbia would soon begin clearing vegetation, but again no one from Columbia followed up or visited the Property. Finally, in March 2017, Columbia put a flyer on the Haases' door informing them that vegetation clearing in the easement would begin imminently. Soon after, Mr. Haas spotted Columbia employees on his neighbor's property and went to speak to them. The foreman informed Mr. Haas that they would be removing trees, including on the Property. When Mr. Haas objected to the removal of any trees on the Property, the foreman suggested that if Mr. Haas was concerned, he should contact Columbia.

         Mr. Haas promptly contacted Columbia and requested that a Columbia representative come out to view the Maple Tree and see that it did not interfere with the Pipeline. After several communications, Mr. Haas was referred to Stephenson. After much insistence, he convinced her to visit the Property. During a visit on March 24, 2017, Stephenson, Redd and another Columbia employee rejected Mr. Haas's pleas not to remove the Maple Tree and insisted that it had to be removed based on Columbia's policy. Redd told Mr. Haas that they would be coming on "Monday or Tuesday to remove your tree." 5/24/19 Tr. at 20-21. On March 30, 2017, as soon as Mr. Haas saw Redd's vehicle and a truck driving up to the Property, he called the police. Redd got out of the vehicle and told Mr. Haas they were there to remove the tree, but Mr. Haas told him to stay back and that he had called the police. Only when police officers arrived and directed the Columbia personnel to leave the premises did they desist in their efforts to cut down the Maple Tree that day. Columbia then filed the instant action seeking a court order authorizing Columbia to remove the Maple Tree.

         II. Location of the Pipeline

         A. Proximity to the Maple Tree

         The Court finds that the Pipeline runs through the Property and passes approximately two feet away from the trunk of the Maple Tree, with the Pipeline passing near, but not directly under, the trunk of the Maple Tree. The parties have stipulated that the Maple Tree is located 23 feet from the corner of the Haases' house ("the House"), and that the corner of the House is located within 25 feet from the Pipeline. This approximate two-foot distance is consistent with markers located at the Property. According to Redd, in the vicinity of the Maple Tree, there are two pipeline markers, installed by Columbia, which mark the centerline of the Pipeline. Based on these markers, a yellow flag, visible in various photographs admitted as exhibits, was placed along that centerline at the edge of the mulch bed. Together, these three markers mark the centerline and direction of the Pipeline. On May 17, 2M9, at Defendants' request and with the assent of Columbia, the Court conducted a View of the Property. It was shown these three markers, and observed, by standing at a location on a straight line between the two pipeline markers and noting the location of the yellow flag along that line, that the center line of the Pipeline passes approximately two feet to the south of the trunk of the Maple Tree, on the side of the tree away from the House. Redd, Columbia's representative at the View, agreed that the Pipeline ran near, but not directly under, the trunk of the Maple Tree. Because the Pipeline is 26 inches in diameter, with 13 inches on each side of the centerline, no part of the Pipeline passes directly under the trunk.

         In reaching this conclusion, the Court does not credit Columbia's claim that the Pipeline runs directly under the trunk of the Maple Tree. Columbia argues that the 23-foot distance from the House to the Maple Tree runs to the side of the trunk closest to the House, the 25-foot distance to the Pipeline runs to its centerline, and the Maple Tree trunk is 17-inches wide, such that some portion of the trunk must pass over some portion of the Pipeline. The evidence at trial, however, was insufficiently precise to support this conclusion. Kvasnicka testified that the 25-foot measurement was based on the Columbia land department's review of the plat of the dwelling, but no witness who actually took that measurement testified, and the plat introduced as evidence lacks sufficient detail and resolution to be of any value on this question. Likewise, although Kvasnicka testified that Mr. Haas had measured the Maple Tree at 23 feet from the House, Mr. Haas stated in his deposition, admitted at trial, that his measurements were "approximate." Haas Dep. at 4, Ex. 18. Crucially, there was no evidence of how and at what angle either of the measurements were taken. If both measurements were not taken along the same line from the corner of the House, their two-foot difference in distance would not necessarily translate to a two-foot difference between the side of the trunk closest to the House and the centerline of the Pipeline. This lack of precision in measurements was a recurrent trend at trial.

         Although Kvasnicka and Redd testified at various times that the Maple Tree was right on top of the Pipeline, the Court does not find this testimony reliable or credible, to the extent that it could be interpreted as stating that the trunk is directly over the Pipeline. Kvasnicka gave inconsistent testimony, at one point claiming the Maple Tree was "on top" of the Pipeline, but also stating on cross examination that he believed the Maple Tree was "within two feet of the pipeline." 5/22/19 PM #2 Tr. at 31; 5/23/19 Tr. at 25. When the Court asked Kvasnicka to specify how he arrived at his conclusion on the location of the Maple Tree, he clarified that he was simply estimating based on the measurements that he had been provided. Although Kvasnicka is an engineer, he inexplicably never took any measurements himself and did not even visit the Property until after the Court ruled on Columbia's Motion for Summary Judgment. His claim that when he visited, he observed that the Pipeline runs directly under the Maple Tree actually undermines his credibility, where that observation, in no way grounded in any expertise, directly conflicts with the stipulation and the observations at the View that the Maple Tree was approximately two feet off the centerline. The Court finds that Kvasnicka's testimony was too inconsistent, imprecise, and ungrounded in reliable analysis to alter the Court's finding. See D 'Abbracci v. Shaw-Bastian, 117 P.3d 1032, 1044 (Or. 2005) (affirming the trial court's decision not to credit a utility company's expert when he "merely 'eyeballed' the area without actually taking any measurements").

         For the same reasons, the Court likewise rejects Redd's testimony that based on his personal observation, the Maple Tree is "right on" the Pipeline as, at best, imprecise. 5/22/19 AM Tr. at 102. Although Redd asserted that the yellow flag in the ground placed by Columbia to mark the location of the Pipeline, as seen in Exhibit 12-A, establishes that the Maple Tree is "right on" the Pipeline, that testimony is contradicted by Kvasnicka's testimony on cross examination that a single yellow flag, without a second marker to establish the actual direction in which the Pipeline runs, is insufficient to establish the Pipeline's distance from the Maple Tree. Whether Kvasnicka and Redd were merely imprecise or were attempting to exaggerate the proximity of the Pipeline to the Maple Tree, the Court does not credit their testimony that the Maple Tree is right over the Pipeline, at least to the extent they were claiming that the trunk was directly over the Pipeline. Accordingly, relying on the parties' stipulation as corroborated by the onsite observations at the View, the Court finds that the Pipeline runs approximately two feet to one side of the trunk of the Maple Tree and does not pass directly under the trunk.

         B. Depth

         As for the depth of the Pipeline, the Court finds that the Pipeline is between four and five feet (48-60 inches) below the ground upon which the Maple Tree sits. On October 12, 2018, in conjunction with this litigation, Francis Stone, a transmission mechanic who worked for Columbia for 37 years, sought to determine the depth of the Pipeline. Stone used both a pipeline locator, a handheld device that takes computerized readings of the depth of the pipeline, and a four-foot long T-bar, a metal bar that is inserted in the ground until it hits a pipeline, to measure the depth of the Pipeline. At a location just outside the circular mulch bed surrounding the tree, which has an approximately nine-foot radius, Stone sunk the T-bar the full four feet to its hilt and hit the Pipeline at that depth, as illustrated by the photograph of the T-bar in the ground in Exhibit 108-F. Although Defendants disputed that Stone actually hit the Pipeline with the four-foot T-bar, Stone testified that he was certain that he felt the Pipeline with the T-bar because there is "a certain feel" to hitting a Pipeline with which he is familiar from prior experience. 5/22/19 PM Tr. at 18. Thus, the Pipeline was located four feet below the ground at that location, approximately nine feet from the Maple Tree. Indeed, Kvasnicka testified that based on the information available to him, the Pipeline averages four feet below ground on the Property.

         As for the depth directly below the Maple Tree, the Maple Tree is at a higher grade than the location outside the mulch bed where Stone sunk the T-Bar. Mr. Haas provided unrefuted testimony that he used a mason's level to measure the height of the mulch bed in which the tree is planted, and that it measured one foot high. Such a measurement is consistent with the Court's visual inspection of the Property during the View as well as Exhibit 105-A, which shows that the Maple Tree sits on a raised mound of mulch. Accordingly, the Court finds the Maple Tree's trunk is located somewhere between four and five feet above the level of the Pipeline.

         In so finding, the Court does not credit Stone's testimony that he found the Pipeline at 41 inches below the Maple Tree. That testimony is directly contradicted by the photograph, Exhibit 108-F, which Stone acknowledged as showing that the full 48-inch length of the T-bar was in the ground at the location where he found the Pipeline. In light of that evidence, it is clear that Stone's testimony of 41 inches related to his measurement with the pipeline locator. That measurement was unreliable for two reasons. First, Stone testified that the pipeline locator is not a perfect measurement tool and that at one point, his particular instrument could be inaccurate by six inches. Kvasnicka confirmed that in the industry, pipeline locators are only used for general reference rather than exact measurements. Second, where Stone did not write down or otherwise document his measurements, he acknowledged that he could not precisely recall the exact depth reading given by the pipeline locator when he testified, "If I remember correctly, I believe it was 41 inches." 5/22/19 PM Tr. at 12. Indeed, the Court finds that Stone's memory generally was not reliable. He claimed at one point in his testimony that he did not recall intending to bring a six-foot T-bar, as requested by Defendants, but in a video of the October 2018 inspection, Stone states that he did not bring a six-foot T-bar because he hurt his back. He later acknowledged when confronted with his deposition testimony that it was possible that he had planned to bring a six- foot T-bar. Stone also testified that Defendants' counsel had grabbed onto the Maple Tree's branches and stood on the T-bar to make sure that it had actually hit the Pipeline, a fact which other witnesses present for the inspection, including attorney Leonard Murphy and Columbia's expert arborist, Donald Zimar, testified never happened. In light of these discrepancies, and where the photographic evidence confirms that the Pipeline was at least 48 inches below the ground, the Court does not credit Stone's testimony that the Pipeline was 41 inches deep.

         III. Roots

         The Court finds that the Maple Tree's roots extend approximately 20-27 inches below the ground. Lewis Bloch, Defendants' expert arborist, testified that all Japanese maple trees have very shallow root systems, including the particular species on the Property, the burgundy lace Japanese maple. Bloch explained that the key ingredient for proper root growth is oxygen, so all tree roots, especially maple trees, tend to stay close to the surface of the ground and search out better soil conditions, particularly in clay soil, which lacks air pores. Bloch reviewed a separate arborist's report which used a system call TRU radar to assess the depth of the Maple Tree's roots and found that the roots were 27 inches deep. Based on the conclusions of this report, the general characteristics of Japanese maple trees, and his visual examination of the Maple Tree itself, Bloch provided his expert opinion that the Maple Tree's roots are no deeper than 27 inches and more likely extend only 20 to 24 inches below ground.

         This opinion is corroborated by the testimony of Kelly Lewis, the General Manager of Ruppert Nurseries, a tree farm specializing in growing, harvesting, and moving large trees. Lewis testified that based on his visual inspection of the Maple Tree and his extensive experience relocating trees, including a number of Japanese maple trees for which he observed the root structures, he concludes that the Maple Tree's roots are no deeper than 24 inches. Like Bloch, he testified that Japanese maples are shallow-rooted trees, and that in moving Japanese maple trees, his company has rarely found roots deeper than 20 to 24 inches. The Court credits the testimony of Bloch and Lewis and finds that the Maple Tree's roots extend between 20-27 inches below the surface.

         Zimar, Columbia's rebuttal expert arborist, provided no testimony inconsistent with this finding. He agreed that Japanese maple trees have shallow root systems but cautioned that individual trees are variable and do not always conform to averages. Here, however, where Mr. Haas testified that the soil at the Property is clay, and Bloch testified that roots in clay soil tend to stay close to the surface because of the lack of oxygen, there is actually a greater likelihood that the Maple Tree's roots have stayed closer to the surface. Although Zimar stated that TRU radar generally has a 20 to 30 percent error rate, he had no specific reason to doubt the TRU radar reading in this case and provided no alternative opinion on the depth of the Maple Tree's roots. Where the only actual measurement placed the roots' depth at 27 inches or less, and Bloch and Lewis had significantly more experience with Japanese maple trees than Zimar, Zimar's testimony provides no basis to alter the Court's finding.

         None of Columbia's other witnesses provided testimony to contradict these findings. No witness testified that there is any evidence that the Maple Tree's roots are below 27 inches or touching the Pipeline. All agreed that no testing on the Pipeline near the Maple Tree over the past 40 years has ever shown that its roots had touched or damaged the Pipeline. Although Redd, Rew, and Kvasnicka provided general testimony about the dangers that tree roots pose to pipelines, and offered examples of incidents in which tree roots were found to have interacted with pipelines and damaged their coating, none of those examples involved a Japanese maple tree. Rather, the types of trees that are most likely to damage pipelines, according to Rew, include pine trees and forsythias. Indeed, none of Columbia's witnesses could reference a single case when a Japanese maple tree's roots had damaged a pipeline. Based on the available evidence, the Court finds that the Maple Tree's roots extend from 20-27 inches below the ground and therefore are not touching the Pipeline, which is 48-60 inches below the Maple Tree.

         IV. Present Need to Access

         There is no present need to access the Pipeline in the area at or near the Maple Tree. The parties agree that when tree roots are touching a pipeline, they can cause damage by eroding the cathodic protection, an electrical field surrounding a pipeline to prevent corrosion, and thus require digging down to the pipeline to conduct repairs. At the same time, there is no evidence that proximity of roots to a pipeline, absent direct contact, harms the pipeline. Kvasnicka acknowledged that he does not know how close tree roots have to be to a pipeline to damage its cathodic protection. Here, beyond the findings that the Maple Tree's roots do not extend to the depth of the Pipeline, none of the testing conducted by Columbia over the years provides any indication that the Maple Tree has damaged the Pipeline or caused a condition requiring intervention. In particular, a test station located in close proximity to the Maple Tree, just outside the Property, from which a wire running to the ...


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