July 7, 2008
TOWNSHIP OF EAST BRUNSWICK, MARK BARRETT, MICHELLE BARRETT, SUE BENSON, MARK BENSON, STEPHEN DATKOWITZ, MARGOT DATKOWITZ, CHRIS DUFFY, ALI FAZAL, LORRAINE GORMAN, ALAN GRAND, CAROL GRAND, JILL KAMIN, LARRY KAMIN, FRANK MARCELLO, ROSEMARIE MARCELLO, ROCHELLE MARKOWITZ, J. MARKOWITZ, MARTIN RAFFEL-CHAVENSON, MARRIS RAFFEL-CHAVENSON, MICHELLE SILVER, NEIL SILVER, ROBBIE SUSMAN, SHIRLEY SUSMAN, LARRY WEINTRAUB, IRENE WEINTRAUB, STEVEN WEINBERG, DORNA SILVERMAN, AND LISA YERGENSEN, PLAINTIFFS-APPELLANTS/CROSS-RESPONDENTS,
TRANSCONTINENTAL GAS PIPELINE CORPORATION, THE WILLIAMS CO., AND TRANSCO/WILLIAMS COMPANY, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-302-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 2, 2008
Before Judges Parrillo, S.L. Reisner and Baxter.
In this matter involving easement rights of a company engaged in the transporting of natural gas, plaintiffs Township of East Brunswick and twenty-eight of its homeowner residents appeal from an order of the General Equity Part summarily dismissing their action for injunctive relief enjoining defendant Transcontinental Gas Pipeline Corporation (Transco) from removing nineteen shade trees growing within its easement and situated above its gas pipeline. Defendant cross-appeals from that portion of the order requiring a staged removal over a three-year period. For the following reasons, we affirm on the appeal and reverse on the cross-appeal.
Some background is in order. Transco operates an interstate natural gas transmission system that runs from the southern Atlantic seaboard to New York City. One of its main lines, the Lower Bay Line, runs across East Brunswick and along Timber Road. The gas line at this location was constructed in 1967 and consists of a single forty-two inch diameter high pressure pipeline.
Transco obtained from the property owner, Transcontinental Production Company (Transcontinental), a one-hundred-foot wide easement for the pipeline, pursuant to a right of way agreement dated April 11, 1968, and recorded on April 16, 1968. The right of way agreement provides in pertinent part:
[A] right of way and easement for the purposes of laying, constructing, maintaining, operating, repairing, altering, replacing and removing from time to time one or more pipelines, together with valves, tie-overs and other appurtenant facilities, for the transportation of gas, oil, petroleum and petroleum products, upon, under or across the lands of the Grantor, in the Township of East Brunswick, Middlesex County, New Jersey . . . . together with such other rights as may be necessary or convenient for the full enjoyment or use of the rights herein granted, which such rights shall include, among others:
(a) the right to enter upon the right of way and easement herein granted and to pass along the said strip with equipment, material and men, at such times as Grantee may elect,
(b) the right from time to time to keep said right of way free from trees, undergrowth and all other obstructions that may endanger or interfere with the construction, operation and maintenance of Grantee's pipe lines[.] . . . .
Grantor specifically covenants and agrees:
(a) Grantor will not . . . use the said permanent right of way or any part thereof in such a way as to interfere with Grantee's immediate and unimpeded access to said permanent right of way . . . . [(emphasis added).]
Transcontinental subsequently sold the property along Timber Road subject to the easement, and in the 1980s, this property was developed into a residential community of single family homes. The one-hundred-foot width of the easement covers the width of Timber Road, the adjacent sidewalks and portions of the plaintiff residents' front yards. The pipeline is buried forty inches below the surface and runs along one side of the street in the public space between the sidewalk and the curb.
The nineteen shade trees in question were planted some time during the 1980s along the street, between the sidewalk and the curb, so that they are growing directly above the pipeline. Obviously, Transco had knowledge of the existence of these shade trees because it regularly inspected and monitored the pipeline.
Indisputably, natural gas pipelines, such as this one, must be properly maintained and monitored because any rupture can cause serious damage. Indeed, during the manufacturing process, protective coatings are applied to the steel pipe sections to help prevent corrosion and the pipeline along Timber Road has a protective coating of asphalt that is five-eighths of an inch thick.
Transco undertakes numerous measures to monitor its pipeline in an effort to prevent ruptures. Initially, the pipe sections are inspected by Transco representatives at the place of fabrication to assure that they meet federal and industry-wide standards. Once the pipeline is in service, Transco maintains a Supervisory Control and Data Acquisition system, which monitors and regulates the pressure and flow of natural gas through the pipeline. This is a computerized system that receives data on the operating conditions along the pipeline through remote sensing units. This system is staffed twenty-four hours a day, 365 days a year. This system, however, will only detect problems after they occur.
Transco also has an extensive program for on-site inspection of the Lower Bay Line pipeline right of way. An inspector walks directly over the pipeline at least once a year to perform ground tests to determine if natural gas is leaking. The right of way is patrolled almost daily by vehicle and it is inspected once a week by air to determine if any unauthorized excavation is occurring in the area and to detect early signs of leakage.
An internal device called the "Smart Pig" is also used by Transco to detect any anomalies in the thickness of the pipe's steel. The "Smart Pig" can only detect irregularities in the thickness of the pipe's steel; it cannot detect any change in the thickness of the pipe's protective coating.
Despite all these precautions, the threat of pipeline ruptures caused by corrosion and third-party activities still persists. Illustrative of the seriousness of this threat are three disasters that occurred across the country involving natural gas pipelines: (1) the "Durham Woods" explosion in Middlesex County on March 23, 1994, in which the exterior surface of the pipeline was damaged by excavation with a backhoe, leading to an explosion within one hundred yards of an apartment complex in Edison; (2) the rupture of a gasoline pipeline in Bellingham, Washington on June 10, 1999, caused by construction of a water treatment plant five years earlier; and (3) the rupture of a natural gas pipeline near Carlsbad, New Mexico on August 19, 2000, due to corrosion.
Concerned about possible damage to the pipeline's protective coating by tree roots, maintaining a clear line of sight along the pipeline, and preventing any delays in reaching the pipeline in an emergency, Transco sought to remove the trees above the pipeline along Timber Road as part of a larger effort to remove trees above all of its pipelines in the Princeton Division. Plaintiff residents objected and filed in the Chancery Division an order to show cause and verified complaint seeking a temporary restraining order enjoining Transco from removing the trees. Temporary restraints issued*fn1 pending a plenary hearing. Following its answer and the completion of discovery, Transco moved for summary judgment, maintaining that it enjoyed an absolute legal right to remove the trees under the 1968 "right of way" agreement. Plaintiffs opposed the motion arguing that there was a genuine issue of material fact whether the trees endangered the pipeline, and whether their removal was reasonably necessary for grantee's enjoyment of its easement right.
Actually, no evidence was adduced on the summary judgment record that the tree roots are currently damaging the pipeline along Timber Road. Rather, Transco produced uncontroverted evidence of potential harm, citing other sections of its pipeline in New Jersey where their protective coating had been damaged by tree roots. Thus, William Shoaf, a licensed professional engineer and certified cathodic protection technician, indicated in his certification that "It is not uncommon, in maintaining its pipeline, for Transco to discover that tree or plant roots have damaged the pipeline coating." Shoaf cited three such instances and offered photographs depicting the damage to the pipeline. For example, on October 7, 2004, Transco discovered that tree roots had damaged the coating material on a pipeline that was fifty-three inches underground in Burlington Township. Upon excavation, Transco discovered that the tree roots from trees located eight to ten feet away from the pipeline had grown into and around the pipeline, causing extensive degradation of the protective coating. On November 17, 2005, Transco discovered that plant roots had damaged the coating material of a pipeline located three to four feet underground in Hamilton Township. And on August 15, 2006, Transco discovered that tree roots had damaged the coating of a pipeline in Princeton Township that was four to five feet underground.
A 2004 "Smart Pig" investigation revealed metal losses ranging from 6% to 15% at various locations on Transco's pipeline along Timber Road. Additional testing in 2005 uncovered pipeline coating defects or interruptions at some of the same locations where the "Smart Pig" anomalies were discovered. Neither of the inspections, however, definitively determined that tree roots were the cause of the damage.
In response, plaintiffs offered the certification of Bruce Hamilton, Ph.D. and Associate Professor at Rutgers, who opined that the tree root systems of the trees along Timber Road "are generally non-invasive. . . . [and] not likely to interfere in any way with the pipeline" because the roots are "typically confined to the upper two to two-and-one-half feet beneath the ground surface" due to the diminished oxygen supply in the deeper soil. Plaintiffs also produced the expert report of David Samuel, a civil engineer, who stated that "[i]t is possible to take the position that concern over damaged coating is not warranted since the backup from cathodic protection is available and therefore the integrity of the pipeline is not at risk." (emphasis added).
Finding that Transco need not wait for actual damage to its pipeline before exercising its express easement rights, the motion judge concluded, "the record indicates that tree roots may damage the protective coating of the pipeline . . . . [and]
[f]urther, efforts to keep the protective coating of the pipe intact [are] part of the necessary maintenance program for a pipeline." Noting that plaintiffs' expert qualified his opinion by addressing only the "typical" depth of the tree roots, the judge found no factual dispute over the potential for harm to the pipeline caused by the tree root system extant on Timber Road. For similar reasons, the judge found that plaintiffs' expert's opinion on the protective sufficiency of Transco's cathodic system amounted to no more than a statement of what may be theoretically "possible," insufficient to raise a genuine issue of material fact.
The judge also discerned no factual dispute over the need to remove the trees in question to ensure a clear line of sight along the pipeline and to maintain its appearance as a right of way upon inspection. She reasoned that while the pipeline's path is marked with yellow markers, the presence of the trees detracts from the area's appearance as a right of way and may lead to third party interference with the pipeline, which is one of the biggest causes of pipeline accidents.
Accordingly, the court granted summary judgment in favor of Transco, dissolving the temporary restraints and dismissing plaintiffs' complaint, effectively allowing Transco to proceed with the removal of the trees. However, the judge ordered that the removal be staged over a three-year period to "give the homeowners time to plan and set aside money for new trees and vegetation to counter the anticipated loss of all of the trees [and to] help minimize the impact on the neighborhood."
On appeal, plaintiffs raise the following issues:
I. THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT.
A. The Court erred in ruling that the easement language gave the appellees the clear right to remove trees without a full evidentiary hearing.
1. The court impermissibly broadened the rights of the easement.
2. The easement has limitations.
3. Public policy implications.
B. There are outstanding issues of fact regarding the parties' respective easement rights and the necessity of removing the trees on Timber Road.
II. THE TRIAL COURT ERRED IN RULING THAT THE EQUITABLE PRINCIPLE OF LACHES DID NOT APPLY TO THE FACTS OF THIS CASE.
We deem these issues without merit and save for that portion of the order requiring removal over a three-year period, affirm substantially for the reasons stated in the motion judge's thoughtful and comprehensive written opinion of June 1, 2007 and her oral decision of June 29, 2007 denying plaintiffs' motion for reconsideration. We add only the following comments.
An issue regarding interpretation of an easement clause "presents a purely legal question that is suitable for decision on a motion for summary judgment." Cf. Spaulding Composites Co., Inc. v. Liberty Mut. Ins. Co., 346 N.J. Super. 167, 173 (App. Div. 2001), rev'd on other grounds sub nom. Spaulding Composites v. Aetna Cas. & Sur. Co., 176 N.J. 25 (2003), cert. denied, 540 U.S. 1142, 124 S.Ct. 1061, 157 L.Ed. 2d 953 (2004). On this score, "[t]he primary rule of construction is that the intent of the conveyor is normally determined by the language of the conveyance read as an entirety and in the light of the surrounding circumstances." Hammett v. Rosensohn, 26 N.J. 415, 423 (1958) (citing Restatement (First) of Property, § 242 (1940); 2 Am. Law of Property, § 8.65 (1952)). In the case of ambiguity, the easement should be construed most strongly against the grantor. Hyland v. Fonda, 44 N.J. Super. 180, 187 (App. Div. 1957) (citing Lidgerwood Estates, Inc. v. Pub. Serv. Elec. & Gas Co., 113 N.J. Eq. 403, 408 (Ch. 1933)). "However, when the intent of the parties is evident from an examination of the instrument, and the language is unambiguous, the terms of the instrument govern," ibid. (citing 6 Thompson on Real Property § 3486 (rev. ed. 1940)) and this court makes no further inquiries, Boss v. Rockland Elec. Co., 95 N.J. 33, 38 (1993).
Here, the easement plainly and expressly gives Transco the right to remove trees when they may endanger or interfere with the construction, operation or maintenance of the pipeline. The language specifically states the grantee has "the right from time to time to keep said right of way free from trees, undergrowth and all other obstructions that may endanger or interfere with the construction, operation and maintenance of Grantee's pipe lines . . . ."
The easement also clearly gives Transco the right to remove trees if they interfere with Transco's immediate access to the right of way. The easement specifically states that the grantor "will not . . . use the said permanent right of way or any part thereof in such a way as to interfere with Grantee's immediate and unimpeded access to said permanent right of way."
Thus, the easement here stands in stark contrast to that in Twp. of Piscataway v. Duke Energy, 488 F.3d 203 (3d Cir. 2007), rev'g, 389 F. Supp. 2d 607 (D.N.J. 2005), which gave the pipeline operator only the power to "operate," "inspect" and "maintain" the pipeline across Piscataway Township and was silent as to the operator's right to remove trees and vegetation. Id. at 206. In that case, the Third Circuit, in reversing the district court's grant of summary judgment to homeowners suing to bar Duke Energy from removing trees, held that genuine issues of material fact existed as to whether the trees prevented the operator from conducting aerial surveillance and from gaining access to the pipeline in the event of an emergency, and whether the root growth of the trees posed a significant threat to the integrity of the pipeline. Id. at 210-14.
In contrast here, the plain language of the easement gives Transco the express right to remove trees and does not require actual damage to or interference with pipeline operations before the grantee may act to remove trees. In other words, the easement permits preventive action to avoid potential harm, disruption or interference with the operator's pipeline. And regarding this potential or possibility of damage, the evidence admits of no genuine issue of material fact. There is uncontroverted evidence that the pipeline and pipeline coating along Timber Road has been damaged and although there is no proof the damage has been caused by tree roots, other sections of Transco pipelines and pipeline coating in New Jersey have been damaged by tree roots. Plaintiffs' proofs do not directly contradict this fact since their expert posits only that "the roots are not likely to interfere in any way with the pipeline;" the root systems are "generally non-invasive;" and root growth is "typically" confined to the upper two to two-and-one-half feet beneath the ground surface. Thus, plaintiffs' proofs do not foreclose the possibility that the tree roots here may grow deep enough to interfere with the pipeline, as they have in other sections of Transco's pipeline. As such, the easement right being clear and express, we discern no genuine issue of material fact that would preclude summary judgment in favor of defendant. R. 4:46-2.
Plaintiffs also contend Transco is barred from taking affirmative action by the equitable doctrine of laches. We disagree.
Laches is "an equitable defense that may be interposed in the absence of the statute of limitations." Lavin v. Bd. of Educ. of Hackensack, 90 N.J. 145, 151 (1982). It is "invoked to deny a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right to the prejudice of the other party." Knorr v. Smeal, 178 N.J. 169, 180-81 (2003) (citing In re Kietur, 332 N.J. Super. 18, 28 (App. Div. 2000)). "The length of delay, reasons for delay, and changing conditions of either or both parties during the delay are the most important factors that a court considers and weighs." Lavin, supra, 90 N.J. at 152 (citing Pavlicka v. Pavlicka, 84 N.J. Super. 357, 368-69 (App. Div. 1964)). A finding of laches rests "within the sound discretion of the trial court." Mancini v. Twp. of Teaneck, 179 N.J. 425, 436 (2004) (quoting Garrett v. Gen. Motors Corp., 844 F.2d 559, 562 (8th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 259, 102 L.Ed. 2d 248 (1988)).
In holding that laches did not apply here, the trial court reasoned:
Here the length of delay is considerable, namely twenty or more years. The detriment to the neighborhood is substantial since the entire landscape of the street will be dramatically changed and shade and wildlife will be affected. However, defendant's reasons for the delay are understandable. It is responding to its increased knowledge of the danger of tree roots and the impact of trees on its operation. When weighing the delay and detriment to the plaintiffs against defendant's reasons for removing the trees, the equities lie clearly in favor of the defendant. This pipeline, which is running through a residential neighborhood, has the capacity to trigger a disaster that would threaten the lives and property of the people living there. The concern for safety under these circumstances must override plaintiffs' landscaping, shade and wildlife concerns. These latter concerns can be addressed in other ways, by planting trees and vegetation in other locations. . . .
Further, under New Jersey law an easement created by deed may not be extinguished merely by nonuse.
We find no abuse of discretion in this reasoning.
First, as the general equity judge noted, the mere non-use of an easement cannot destroy the rights granted by it; "'clear and convincing evidence'" of the intent to abandon the easement rights must be shown. Leasehold Estates, Inc. v. Fulbro Holding Co., 47 N.J. Super. 534, 563 (App. Div. 1957) (quoting Fairclough v. Baumgartner, 8 N.J. 187, 189 (1951)). Here, there was no evidence -- much less clear and convincing proof -- that Transco intended to abandon its easement rights and therefore any reliance placed by plaintiffs on Transco's inaction was unreasonable.
Second, there was reasonable justification for Transco's inaction over the years, having been unaware of the potential danger of the tree roots at time of planting. Indeed, the evidence is undisputed that since the trees were planted, there have been three accidents nationwide related to the rupture of natural gas pipelines and three incidents in this State where Transco has discovered that tree roots have damaged pipelines. The fact that action had not been taken earlier does not preclude preventive action now, nor require waiting for actual damage to occur. As noted, laches is an equitable defense, and plaintiffs simply have not demonstrated how their interest in preventing the removal of the trees in question outweighs that of Transco's in taking prophylactic measures in the public's interest.
On its cross-appeal, Transco argues that the trial court abused its discretion when it ordered the removal of the trees over a three-year period. Specifically, Transco maintains that the trial court has a broad range of discretion to fashion an equitable remedy, but only when there has been a wrong that must be vindicated. Here, Transco argues, the trial court found that Transco "did nothing wrong and, therefore, no equitable remedy is needed." We agree.
"Applying principles of fairness and justice, a judge sitting in a court of equity has a broad range of discretion to fashion the appropriate remedy in order to vindicate a wrong consistent with principles of fairness, justice, and the law." Graziano v. Grant, 326 N.J. Super. 328, 342 (App. Div. 1999). The Court has held:
Courts generally should not tinker with a finely drawn and precise contract entered into by experienced business people that regulates their financial affairs. Equitable relief is not available merely because enforcement of the contract causes hardship to one of the parties. A court cannot 'abrogate the terms of a contract' unless there is a settled equitable principle, such as fraud, mistake, or accident, allowing for such intervention.
[Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 223-24 (2005) (quoting Dunkin' Donuts of Am., Inc. v. Middletown Donut Corp., 100 N.J. 166, 183-84 (1985)).]
"[I]t is not the function of the court to make a better contract for the parties, or to supply terms that have not been agreed upon. If the terms of a contract are clear, [the court] must enforce the contract as written and not make a better contract for either party." Graziano, supra, 326 N.J. Super. at 342 (citation omitted).
In imposing the staged three-year time frame, the court sought to give plaintiff homeowners "time to plan and set aside money for new trees and vegetation to counter the anticipated loss of all of the trees [and to] help minimize the impact on the neighborhood." However commendable, we find no basis for this accommodation either in law or equity. As noted, the easement expressly gives Transco the right to keep the right of way free of trees and to remove trees "from time to time" and "as may be necessary or convenient for the full enjoyment" of its easement. Having found under the undisputed facts of this case that Transco's exercise of this clear right is in accordance with the plain terms of the easement, the judge's further decision to delay full implementation of this right for three years finds no basis in the very language of the instrument expressly dictating the nature of the grantor's burden.
Nor do we discern a basis in equity for imposition of the temporal limitation. Even if we assume, as plaintiffs argue, that Transco's prospective action increases the burden upon the grantor beyond that expressly dictated by the instrument and that a balancing of the equities is therefore required, Tide- water Pipe Co. v. Blair Holding Co., Inc., 42 N.J. 591, 605-06 (1964), we are simply not convinced that plaintiffs' articulated concerns outweigh the substantial interests of Transco in operating and maintaining a safe and secure natural gas pipeline.
Moreover, given the danger to life and property posed by pipeline damage, we would reach the same conclusion under the more flexible doctrine of relative hardship, as addressed in post-Tidewater cases. See Gilpin v. Jacob Ellis Realties, Inc., 47 N.J. Super. 26, 34-35 (App. Div. 1957); Kline v. Bernardsville, 267 N.J. Super. 473, 478-80 (App. Div. 1993); and Szymczak v. Laferrara, 280 N.J. Super. 223, 230-31 (App. Div. 1995). Balancing the equities, we are satisfied that the potential damage to defendant and the public at large from any delay in removing the nineteen trees in issue is so grossly disproportionate to any damages accruing to plaintiffs from immediate implementation of the plan as to justify denial not only of the injunction, but the three-year condition imposed by the motion judge. Finally, we note that since entry of the June 29, 2007 order on appeal here, plaintiffs have had nearly a year to plant trees or other vegetation in alternative locations away from the pipeline.
Affirmed in part; reversed in part.