ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

CA02-1330

September 10, 2003

HAROLD McDONALD and AN APPEAL FROM UNION COUNTY

ANITA McDONALD CIRCUIT COURT

APPELLANTS [E2001-391-2]

v.

HONORABLE EDWARD JONES,

RELIANT ENTERGY GAS CIRCUIT JUDGE

TRANSMISSION CO.

APPELLEE AFFIRMED

John Mauzy Pittman, Judge

The appellee in this property case filed suit seeking injunctive relief and damages for appellants' interference with appellee's easement. The trial court found in favor of appellee and granted the requested relief. From that decision, comes this appeal.

Appellants Harold and Anita McDonald own real property in Union County, Arkansas. In 1928, appellants' predecessor in title granted to the Arkansas Natural Gas Corporation, predecessor in title to appellee Reliant Entergy Gas Transmission Co., a right-of-way across the property to "lay, maintain, alter, repair, operate and remove pipe lines for the transportation of oil or gas...." The deed also provided that "[t]he said grantor, heirs or assigns, [retain the right] to fully use and enjoy the said premises except for the purposes hereinbefore granted to the said grantee...." The deed further provided that the grantee "agrees to pay for any damages which may arise to crops or fences from [the operation or maintenance] of said lines" and, if the parties cannot agree upon the damages, the damages will "be ascertained and determined by three disinterested persons...."

The property is in a low, wet, marshy area. Appellants began to fill in the land to raise the level of the property so they could develop it into a recreational vehicle (RV) park. Appellants placed fill, including rock and concrete, on the property, including over appellee's pipeline. Appellants had also built asphalt "pads" as parking spaces for RVs and had run utilities to the pads. Upon learning of appellants' actions, appellee filed suit seeking injunctive relief and damages, alleging that the fill and construction interfered with its ability to operate and use the pipeline and caused a safety hazard. The trial court granted a temporary injunction. The parties agreed to a temporary injunction allowing appellants to continue with work on other parts of the property not involving the pipeline. Appellants answered, denying the allegations of the complaint and that appellee was entitled to injunctive relief.

Darrell Vinson, an operation and maintenance technician for appellee, testified that appellee maintained a forty-foot right-of-way on top of which RV pads were situated. He also testified that the pipeline was required to be maintained under three to six feet of cover and that the three-foot depth is standard within the industry. He also testified that appellant had placed fill on top of the pipeline to raise the cover to a range of seven to twelve feet above the pipeline, which prevents him from monitoring the pipeline and from protecting the pipeline from corrosion. He testified that the excavation of the pipeline revealed several places where the coating had been damaged.

Vinson further testified that the fill, which contained concrete, gravel, and rebar, placed additional stress on the pipeline. He testified that, after discovering appellants' work, appellee had to excavate the pipeline in order to inspect for any damage. He testified that the excavation work cost $10,323. He admitted on cross-examination that he did not personally see appellants damage the pipeline or that the concrete fill was in contact with the pipeline. He also stated that appellee needed to have a forty-foot easement in order to use heavy machinery to maintain the pipeline but that a thirty-foot easement would also be sufficient.

William Taylor, regional engineer for appellee, testified that the pipeline across appellants' property was engineered to withstand cover three to five feet deep. He testified that he performed a stress analysis based upon a formula and that, according to his calculations, the stress on the pipeline was greater than the specifications allowed, with no tolerance permitted. He recommended that any cover in excess of five to six feet above pipeline depth be removed for safety concerns. He testified that the pipe that was used was designed for use under an open field or in a field used for agricultural purposes.

Ronnie McNeely, operations director for Reliant Energy Pipeline Services (Reliant Pipeline), testified that Reliant Pipeline is required by the Department of Transportation (DOT) to develop a safety and operations manual, which DOT then reviews and approves. He also testified that Reliant Pipeline is not permitted to operate without an approved plan. He stated that one item in the manual prohibited permanent structures such as houses, trailer homes, mobile homes and others that would obstruct maintenance and immediate access to the right-of-way.

Appellant Anita McDonald testified that she and her husband purchased the property in 1993 and that the property was boggy and marshy, with no indication that a right-of-way was being maintained. She said that, at the time appellants purchased the property, the pipeline area was under water. She also testified that her husband was a dirt contractor and that he had dumped loads of dirt and material on the property in order to build it up. She also testified that appellants hired an engineer to lay out an RV park on the property to serve as temporary housing for workers building a new plant. She admitted that, before construction of the RV pads was begun, appellants understood that a gas pipeline crossed their property.

Appellant Harold McDonald testified that he used dirt, concrete, and demolition material to fill in the property. He admitted that, at the time appellants purchased the property, he did not check the width of appellee's right-of-way. He also admitted that, as a contractor, he was familiar with the "One Call" program but did not utilize it during the construction of the RV park. He stated that, in an effort to avoid excavating the pipeline, he urged appellee to dig test holes along the pipeline as a means of testing for damage but that appellee refused. He also stated that he examined the invoice that appellee received for having the pipeline excavated by one of his competitors and that there did not appear to be any unreasonable charges included.

William Gaunt, a civil engineer, testified that he designed the RV park for appellants. He testified that he reviewed the calculations performed by William Taylor, appellee's engineer, and opined that the amount of the stress on the pipeline was within DOT limits. He testified that the width of the trench has a more dramatic effect on the calculations than the amount of the cover, i.e., increasing the width of the trench increases the stress. He also stated that he disagreed with Taylor that five to six feet of cover was the limit.

The trial court issued a letter opinion in which the trial court concluded that appellee's right-of-way should be thirty feet wide, that appellants should be permanently enjoined from placing any fill material within the right-of-way without prior approval from appellee, and that appellee should be awarded judgment against appellants for the cost incurred excavating and inspecting the pipeline. A decree consistent with the letter opinion was entered on June 21, 2002. This appeal followed.

Appellants argue three points: (1) that the trial court erred in finding that appellee was entitled to a right-of-way thirty feet wide, (2) that the trial court erred in ruling that appellants could not place any materials over appellee's right-of-way, and (3) that the trial court erred in granting judgment to appellee for maintenance of the easement.

Our standard of review in equity cases is de novo. Conagra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 30 S.W.3d 725 (2000). We do not reverse a finding of fact of the trial court unless we conclude that the trial court has clearly erred. Saforo & Assocs., Inc. v. Porocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999). A finding is clearly erroneous when, even though there is evidence to support it, the appellate court is left with the definite and firm conviction that a mistake has been made. Id.

For their first point, appellants argue that the trial court erred in fixing the right-of-way at thirty feet. Relying on such cases as Bradley v. Arkansas Louisiana Gas Co., 280 Ark. 492, 659 S.W.2d 180 (1983), and Southwestern Bell Telephone v. Davis, 247 Ark. 381, 445 S.W.2d 505 (1969), for the rule that, once a right-of-way becomes fixed, it cannot be moved, appellants argue that the trial court erred in expanding the right-of way.

We disagree. We believe that the trial court was establishing the extent of the way so that both parties would know how far they could use their property without encroaching on the other party's rights. This court, in Reeder v. Arkansas Louisiana Gas Co., 6 Ark. App. 385, 644 S.W.2d 291 (1982), held that defining the scope of an easement is the function of the court and it must consider the use and what is reasonably necessary. Here, the deed conveying the right-of-way does not specify the width of the way. Appellee presented witnesses who testified that a right-of-way forty feet wide was needed in order to allow machinery to be brought to the pipeline for maintenance purposes and that appellee had historically maintained the way at thirty to forty feet wide.

For their second point, appellants argue that the trial court erred in ruling that appellants could not put any material over appellee's right of way. Appellants misconstrue the trial court's ruling. The trial court ruled that the fill material placed on the easement was a safety hazard and that appellants could not cover the easement with any type of material without prior permission from appellee. We also believe that this issue is controlled by this court's decision in Hatfield v. Arkansas Western Gas Co., 5 Ark. App. 26, 632 S.W.2d 238 (1982). In Hatfield, a landowner began construction of a building on the right-of-way for a pipeline, and the pipeline owner sought injunctive relief. The trial court granted the injunction. In addressing the landowner's argument that the trial court's ruling prevented them from making use of their property, this court, speaking through Judge Cracraft, said:

Id. at 30, 632 S.W.2d at 241. See also Craft v. Arkansas Louisiana Gas Co., 8 Ark. App. 169, 649 S.W.2d 409 (1983). In the present case, the trial court found that the pipeline was designed to be placed under three to six feet of cover, that the fill materials could damage the pipeline, and that the pads for the recreational vehicles could increase the weight on the pipe and were a safety hazard to people and property nearby. These findings are the result of the trial court balancing the rights of appellants and appellee in the use of the property and finding that appellants' proposed use would be inconsistent with appellee's rights. The owner of the servient estate can do nothing tending to diminish its use or make it more inconvenient or create hazardous conditions. Bean v. Johnson, 279 Ark. 111, 649 S.W.2d 171 (1983); Hatfield, supra; see also Central Ky. Natural Gas Co. v. Huls, 241 S.W.2d 986 (Ky. 1951).

For their third point, appellants argue that the trial court erred in granting judgment to appellee for the maintenance of the easement. Appellants argue that the owner of the dominant estate is ordinarily charged with the cost of the maintenance of the easement. Appellants also argue that there is no authority for the trial court to award the costs of inspection. In the present case, there was testimony that rock and other fill materials could damage the pipeline coating and cause a hazard. The trial court found that appellee acted reasonably in excavating the pipeline in order to ascertain whether any damage had been done. Appellee presented an invoice for $10,323.75 from the contractor for the excavating work, and the trial court awarded appellee damages in this amount. In Scaife v. Coleman, 239 Ark. 427, 389 S.W.2d 884 (1965), the supreme court affirmed the chancery court's award of damages to the owner of a right-of-way for damages to the way caused by the owner of the servient estate. The court noted that the way had to be repaired before the appellee could resume using the way. In the present case, in view of the potential hazard cause by appellants' actions and the fact that the inspection was mandated by 49 CFR § 192.614(6), (7), we cannot say that the trial court was clearly erroneous in awarding damages to appellee for the expenses incurred. The excavation was not in the nature of routine maintenance for which appellee would be responsible. Instead, the excavation was a direct result of appellants' actions, which could have caused damage to the pipeline by adding weight on top of the pipeline.

Affirmed.

Hart and Robbins, JJ., agree.