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Township of Piscataway v. Duke Energy

389 F.Supp.2d 607 (D. N.J. 2005)

EASEMENTS—Where trees have stood along a pipeline easement for more than 40 years without objection, the easement holder, having known of the trees, must find ways to enjoy the easement besides the ones, such as removing the trees, that it finds most convenient and then present requisite evidence of reasonable necessity for enjoyment of the easement.

A pipeline company and its predecessors enjoyed easements to run three pipelines through a neighborhood. The easements gave the pipeline company “the express power to, inter alia ‘operate,’ ‘inspect,’ and ‘maintain’ the pipelines.” The easement was on municipal property. With the knowledge of the pipeline company and its predecessors, and without objection, about eighty trees were planted forty years earlier along the easement. When the pipeline company notified the municipality and various homeowners that it would be “removing trees, limbs, and foliage from the area of the easement,” the municipality and the neighbors objected. Before that time, neither the pipeline nor its predecessors had ever “asserted a legal right to remove the trees.” By consent order, five trees were removed. A law suit made its way to federal court where the pipeline company argued that it was “necessary to remove the trees in order gain access to the pipelines in the event of emergency. [The pipeline company] posit[ed] that the trees may be in the way of a vehicle getting to a particular location or a tree trunk/root may be in the way of access to a damaged part of the pipeline.” The pipeline company utilized arial surveillance “to observe the property under which its pipelines lay. If the surrounding vegetation looks ‘distressed,’ it [was] a signal that the pipeline may have a leak.” The pipeline company also routinely surveyed the pipeline route by vehicle, but argued that arial surveillance was the most effective and least intrusive means to do a proper inspection. There was no evidence, however, that airplanes could not see through the tree’s branches and the pipeline company “proffer[ed] no facts to demonstrate that land surveillance, in combination with the warning signs against construction on [the parallel road] (required by law) and the [municipality’s] ability to regulate construction on its property, [was] ineffective to give [the pipeline company] notice regarding safety and maintenance of the pipelines.”

Although the pipeline company argued that with the trees in place, it could not enjoy its “rights under the Easement ‘to operate,’ ‘inspect,’ or ‘maintain’ the pipelines unless all of the trees” were removed, it could “point to no particular tree or trees removal that might alleviate [its] concern.” It couldn’t show that other methods of enjoying its easement rights were ineffective. The Court was particularly comforted that there was no evidence “as to why [it had] suddenly become necessary to remove [the trees] in order to enjoy the easement’s terms.” It pointed out that the pipeline company and its predecessors “[had] complied with the law and exercised safety precautions for forty years since the pipelines were installed and the trees planted.” Consequently, it was difficult for the pipeline company “to assert ‘reasonable necessity’ to fundamentally alter a servient estate where years were allowed to pass under the status quo with no complaint regarding enjoyment of the easement.”

As a result, the Court barred the pipeline company from removing all of the trees, holding that “[t]here must be real facts to support the safety argument before [there could be a] fundamental alteration of [the street’s] environment, destruction of the ecology, and reduction in [the municipality’s and the neighbor’s] property values.” The Court believed that “[a]s the trees [were] decades old, they [were] essentially irreplaceable.” On the other hand, the Court pointed out that the municipality and the neighbors were “now on notice that these trees could, in the future, present a demonstrable safety risk sufficient to justify removal.” On the other hand, it insisted that the pipeline company “must first attempt to enjoy [its] easement rights in ways besides the one that [it] find[s] most convenient to [it], ..., and must present the requisite evidence of reasonable necessity for enjoyment of the Easement’s terms.” Further, the Court believed that the doctrine of laches would also have barred the pipeline company’s claim, absent extrinsic circumstances. The pipeline company did not dispute that it, or its predecessors-in-title, “knew that trees would be planted over the pipelines as part of [a] residential development and that [they] did not object to the planting of the trees.” Instead, the pipeline company waited “nearly forty years to assert an alleged necessity to cut down trees.” Because of the length of the delay and the lack of justification or any “evidence regarding changed circumstances,” the Court found the pipeline company’s delay inexcusable and prejudicial to the municipality and the neighbors.

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