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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...