The opinion of the court was delivered by: Magistrate Judge Abel
Plaintiffs Donald S. Andrews and Jill Beeler Andrews filed this action pro se in the Licking Court of Common Pleas to prevent defendant Columbia Gas Transmission Corporation ("Columbia Gas") from removing trees on the Andrews' property in order to maintain the pipeline easement held by defendant. Defendant removed this action to federal court and filed a counterclaim seeking a declaratory judgment that Columbia Gas has the right to remove the trees without compensation to the Andrews, injunctive relief, and damages for breach of contract.
On March 19, 2007, judgment was entered for the defendants. This matter is before the Court on plaintiffs' March 30, 2007 motion to stay (doc. 119) and their April 2, 2007 motion to alter or amend the judgment (doc. 120).
A motion to alter or amend judgment may be granted if there is a clear error of law, newly discovered evidence, an intervening change in controlling law, or to prevent manifest injustice. GenCorp, Inc. v. American Intern Underwriters , 178 F.3d 804, 834 (6th Cir. 1999). Plaintiffs maintain that the cases relied on by the Court concern extinguishing an easement, which plaintiffs never sought to do. Instead, plaintiffs argue that defendant is barred from removing trees and seeking a 50 feet right-of-way on the basis of waiver, laches, breach of contract, adverse possession, and estoppel. Plaintiff contend that they never had the opportunity to rebut defendant's position that "estoppel may preclude the enforcement of an easement created by prescription, not of a granted and recorded easement." Instead, defendant had previously argued that a change in federal regulations prompted the need for clearing trees from the easement.
The Court applied the correct legal standard when it entered judgment for the defendant. In fact, the Court applied the same standard used by the court in Ashland Pipe Line Co. v. Lett , No. CA-942, 1990 WL 52505 (Ashland App. Apr. 11, 1990), the only case referenced by defendants that relied on "estoppel" to hold that the owner of an easement was entitled to less than a 50' pipeline right-of-way.*fn1
When an easement is created by an express grant, the extent and limitations of the easement depend upon the language of the grant. Alban v. R.K. Co. , 15 Ohio St.2d 229, 232 (1968); Columbia Gas Transm. Corp. v. Bennett , 71 Ohio App.3d 307, 318 (1990); Lett , above, at *3. "Where the dimensions of the easement are not expressed in the instrument granting the easement, the court determines the width, length, and depth from the language of the grant, the circumstances surrounding the transaction, and that which is reasonably necessary and convenient to serve the purpose for which the easement was granted." Bayes v. Toledo Edison Co., 2004 WL 2426234, *8 (Ohio App. 6 Dist., Oct. 29, 2004). When the specific terms of an easement are not expressed in the grant itself, determining the dimensions or reasonableness of use becomes a question of fact. Crane Hallow Inc. v. Marathon Ashland Pipe Line , 138 Ohio App.3d 57, 67 (2000).
When the extent of the rights conveyed in an easement, such as the dimensions of the easement, are not apparent from the language of the grant, the dimensions may be established by use and acquiescence. Munchmeyer v. Burfield (Mar. 26, 1996), Washington App. No. 95CA7, unreported, 1996 WL 142579, citing Bruce & Ely, Law of Easements and Licenses in Land (1988), Sections 7.02(2)(b) and 7.06. Once so established, the easement holder is estopped from asserting that different dimensions are reasonably necessary or convenient. Id. However, if the language of the grant clearly gives the easement holder a right in excess of the one actually used, such right still exists notwithstanding the easement holder's exercise of a lesser privilege. E. Ohio Gas Co. v. James Bros. Coal Co. (1948), 53 Ohio Law Abs. 438, 40 O.O. 440, 441-442, 85 N.E.2d 816, 818; Panhandle E. Pipe Line Co. v. Tishner (Ind.App.1998), 699 N.E.2d 731, 737, fn. 1; Texas E. Transm. Corp. v. Grassi (July 12, 1992), E.D.Pa. Nos. 89-4617 and 89-5515, unreported, 1992 WL 172594; Knox at 600.
Crane Hollow, Inc ., at 67-68. The case law indicates that the courts should consider the language of the contract with the evidence, which includes the situation and condition of the easement and the property involved. Courts also examine the use of the easement, obstructions, if any, at the time of the grant, and all other facts bearing upon the situation and relation of the parties. See Roebuck v. Columbia Gas Transmission Corp. , 386 N.E. 2d 1363, 1368 (Ohio App. 2 Dist. 1977).
Plaintiffs' argue that the Court misapplied the law with respect to estoppel. Lett and the other cases cited by plaintiffs use "estoppel" as a method to determine what the language of the easement meant to the contracting parties when they executed it. That is, the conduct of the parties to the contract subsequent to executing the easement is a guide to its meaning:
As stated by the trial court in its opinion:
The intention of the parties at the time of conveyance is the primary consideration in determining the status of an easement. Yoder v. Columbus and Southern Electric Co. (1974), 39 Ohio App.3d 113. (Opinion at 3).
In its cogent opinion, the court also noted that subsequent use by the grantee (Ashland) shows "that the parties did not intend fifty (50) feet to be the required width of the easement." And as further stated by the court:
Acquiescence for a long time in a certain construction of a grant of an easement estops the assertion of a different construction. ...