Brown v. ConocoPhillips Pipeline Company (Previously filed as an unpublished opinion)

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No. 104,280
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IN THE COURT OF APPEALS OF THE STATE OF KANSAS

LONZELLA BROWN,
Appellee,

v.

CONOCOPHILLIPS PIPELINE COMPANY,
Appellant.


SYLLABUS BY THE COURT

1.
Once an easement has been formed, the landowner is the servient tenant and the
holder of the easement is the dominant tenant.

2.
The servient tenant may make any use of his or her property which is consistent
with or not calculated to interfere with the use of the easement granted. Courts determine
the character and extent of each parties' rights under the easement by examining the
language of the grant and the extent of the dominant tenant's use of the easement at the
time it was granted.

3.
An obstruction or disturbance of an easement is something that wrongfully
interferes with the privilege to which the dominant tenant is entitled by making its use of
the easement less convenient and beneficial. However, an obstruction or disturbance of
an easement is not actionable unless it is of such a material character as to interfere with
the dominant tenant's reasonable enjoyment of the easement.


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4.
The language of the grant forming the easement determines whether it is a specific
easement or a blanket easement. A specific easement is formed when the width, length,
and location of the easement for ingress and egress have been expressly described in the
instrument creating the easement. In a blanket easement, on the other hand, the
instrument creating the easement does not delineate specific dimensions of the easement
for ingress and egress as it crosses the servient tenant's property.

5.
Under the facts of this case the present easement is best classified as a blanket
easement because the dominant tenant's rights are imprecise and more difficult to enforce
than they would be if the instrument explicitly described the boundaries of the easement.

6.
Under the facts of this case to obtain the injunction enjoining the removal of a tree
located in the easement, the servient tenant was required to show that the tree did not
constitute a material encroachment that interfered with the dominant tenant's reasonable
enjoyment of the easement.

7.
When the trial court has made factual findings and conclusions of law, the
appellate court's function is to determine whether substantial competent evidence
supports the trial court's findings of fact and whether the findings are sufficient to sustain
its conclusions of law.


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8.
The district court's conclusions in this case were not consistent with its factual
findings or the evidence presented.

9.
The grant or denial of injunctive relief is an action in equity and involves the
exercise of judicial discretion. Appellate courts generally will not interfere with a district
court's grant or denial of an injunction unless the district court abused its discretion.
However, when an appeal frames questions of law, including the threshold legal
requirements for injunctive relief in a particular case, appellate review is unlimited.

10.
The district court in this case awarded a prohibitory injunction, as opposed to a
mandatory injunction. A mandatory injunction requires the performance of an act, while a
prohibitory injunction requires a party to refrain from performing a particular act. There
are four elements the moving party is obligated to prove in order to obtain injunctive
relief: (1) substantial likelihood that the movant will eventually prevail on the merits; (2)
a showing that the movant will suffer irreparable injury unless the injunction issues; (3)
proof that the threatened injury to the movant outweighs whatever damage the proposed
injunction may cause the opposing parties; and (4) a showing that the injunction, if
issued, would not be adverse to the public interest.

11.
Before the elements necessary for injunctive relief can be applied, the first
question which must be addressed is whether an equitable remedy is appropriate in the
first place. Equity never flies in the face of positive law, nor is it invokable to unsettle
thoroughly established legal principles. A party cannot obtain an equitable remedy unless
there is a wrong for which a remedy is necessary. Thus, to be entitled to an injunction, the
moving party must have suffered a wrong requiring an equitable remedy.

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12.
Under the facts of this case, the dominant tenant has the right under its easement to
maintain a pipeline. The undisputed facts show that a tree materially obstructs the
dominant tenant's reasonable enjoyment of its easement. There is therefore no reason to
analyze the elements the servient tenant must show in order to obtain injunctive relief,
and the injunction must be vacated.

Appeal from Wyandotte District Court; DAVID W. BOAL, judge. Opinion filed September 9,
2011. Vacated and remanded with directions.

Teresa J. James and Teresa L. Adams, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of
Overland Park, for appellant.

Teresa Bingham, of UAW-Ford Legal Services Plan, of Kansas City, for appellee.

Before STANDRIDGE, P.J., MCANANY, J., and BRAZIL, S.J.

BRAZIL, J.: This appeal concerns the fate of a large oak tree on the property of
Lonzella Brown. The appellant, ConocoPhillips Pipeline Company (Conoco), owns an
easement giving it the right to "lay, maintain, operate, inspect and remove" its high-
pressure gasoline pipeline which runs through Brown's property. The pipeline was laid in
the 1960s, and since that time the tree has sprung up above the pipeline. In 2009, Conoco
sought to cut down the tree on the basis that it interfered with its ability to maintain and
inspect the pipeline. Brown eventually obtained a permanent injunction preventing
Conoco from removing the tree unless an emergency arose. On appeal, Conoco argues
that the court erred in finding that the tree did not constitute a material obstruction to their
easement. We vacate the injunction and remand.

Conoco owns a 10" high-pressure gasoline pipeline which runs from Paola to
Wyandotte County. The pipeline passes through Brown's property in Wyandotte County.
The pipeline was laid in 1963 by Conoco's predecessor, Phillips Petroleum Company
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(Phillips). That same year, Phillips purchased an easement from the people who owned
the property at the time. The easement generally describes the area on the property where
the pipelines were to be laid but did not expressly specify the width, length, or location of
Phillips' rights for ingress and egress. The agreement merely stated that Phillips had the
right to "lay, maintain, operate, inspect and remove" the two pipelines on the property.
Otherwise, the landowners were vested with the right to "fully use and enjoy said
premises except for the purposes hereinabove granted." The easement was recorded with
the Wyandotte County Register of Deeds in 1963. The pipeline has been used
continuously since being constructed.

When Brown bought the property in 2000, the tree in question was already
present. The tree is a 30-year-old pin oak and is 60' to 70' tall. Conoco began a tree-
clearing project along the 53-mile route of the pipeline from Paola to Wyandotte County.
Conoco removed a number of trees in the course of its tree-clearing project. In October
2009, Conoco informed Brown that it needed to remove the tree. Brown refused to allow
Conoco to do so. Brown filed a petition for injunctive relief in Wyandotte County District
Court seeking to enjoin Conoco from entering her land and cutting the tree down. Brown
subsequently obtained a temporary restraining order against Conoco. Conoco
counterclaimed breach of contract against Brown and for a declaratory judgment
confirming its right to remove the tree.

The case proceeded to a hearing before the district court on February 9, 2010.
Brown testified that she did not want to lose the tree because it is the only tree in her
backyard, it shades her house and yard, and her granddaughter likes to play under it. She
called a horticulturist, Phillip Hogan, as an expert, who testified that 80% or 90% of the
tree's roots were located within 3 feet of the surface. Hogan testified that tree roots take
the path of least resistance, meaning that if they ran into the pipeline, they would go
around it because soil is softer than the pipe. He testified that while the top of a tree
moves with the wind, tree roots are stable and do not move. Hogan valued the tree at
$12,000. However, in making this valuation, Hogan did not take the easement into
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consideration. He estimated that if the tree was cut down and a new one planted, Brown
would be over 90 years old before the replacement tree would reach the current tree's
size.

On cross-examination, Hogan admitted the tree's roots could extend over and
across the pipeline if the pipeline was located within the first 3 or 4 feet of the ground's
surface. He conceded that the pipeline could be damaged by the tree's roots if the pipeline
is located close to the surface within a few feet of the tree, much in the same way that tree
roots can damage a house's foundation if the house is too close to a tree. He also admitted
he did not know the depth at which the pipeline had been buried nor did he know the
pipeline's location in relation to the tree. Finally, Hogan admitted he knows nothing about
gas pipelines or the safety concerns related to pipelines and tree roots.

Conoco called Michael Kemp, a claims consultant, and Todd Tullio, a regulatory
compliance planning manager. Both Kemp and Tullio testified that the pipeline was
located about 1 or 2 feet from the edge of the tree. Tullio was unsure of the precise depth
at which the pipe had been buried in 1963 but estimated its present location was less than
36" under the ground's surface. Tullio testified that the close proximity of the tree to the
pipeline could damage the pipeline because the roots could rub the pipeline's protective
coating off, causing the pipe to corrode. Tullio explained that the pipeline moves when
gasoline is being pumped through it and that the sustained friction between the pipeline
and the roots could lead to the loss of the protective coating. The resulting corrosion of
the pipeline could lead to a number of different problems, including large or small
gasoline leaks, pipeline ruptures, environmental impacts, or possibly an explosion. He
also presented pictures showing the effects tree roots can have on pipelines.

Tullio testified that if there were problems with the pipeline on Brown's property,
Conoco would be unable to excavate around the pipeline until the tree was cut down
because of safety concerns and the inability to access the pipeline due to its close
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proximity to the tree. He estimated Conoco would be delayed from immediately
accessing the pipeline by "at least a couple of days."

He further testified that the tree also impeded Conoco's ability to maintain the
pipeline because it interfered with pipeline inspections mandated by federal regulations.
Federal guidelines require Conoco to aerially inspect its pipelines 26 times per year.
Conoco contracts with an aerial company which navigates the pipeline's route and looks
for a variety of things, including dead vegetation, debris, people digging or planting
vegetation, and the like. If federal auditors detect shrubs or trees that prevent them from
examining the pipelines, they can serve the pipeline company a notice of probable
violation (NOPV), which gives the company 160 days to clear the right-of-way or face a
fine. Tullio explained by way of example that Conoco had received a NOPV on a
different pipeline in 2008. He testified that the efforts to remove Brown's tree were
motivated in part by Conoco's desire to prevent it from receiving an NOPV. However,
Conoco has not received an NOPV because of the tree at this time.

In addition to the aerial inspection done every 2 weeks, Conoco also inspects its
pipelines once every 5 years by using "smart pigs," which are electronic devices that run
through the pipelines to detect depth, wall thickness, dents, or other anomalies. The most
recent smart-pig test of the Paola/Wyandotte County pipeline revealed 74 anomalies,
which Conoco addresses by excavating down to the pipeline and repairing the problem.
Conoco addresses problems in order of their seriousness, with all problems attended to
within 1 year of their detection.

After the close of the hearing, the district court took the case under advisement.
On March 16, 2010, the district court issued its decision in a memorandum opinion. The
district court noted that the issue before it was whether the tree interferes with Conoco's
rights under its easement to maintain and inspect the pipeline, when balanced against
Brown's right to "fully use and enjoy" her property. On the facts before it, the district
court concluded the tree did not constitute a material interference to Conoco's ability to
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maintain the pipeline. There are currently no anomalies in the pipeline requiring
maintenance, and in the event it became necessary for Conoco to excavate the pipeline,
the tree would not prevent it from doing so. In other words, the district court concluded
the tree would only make excavation more difficult but would not prevent Conoco from
accessing the pipeline if the need arose.

The district court also concluded the tree did not constitute a material interference
to Conoco's ability to inspect the pipeline. The district court noted that Conoco had not
complained about the tree for 30 years, and although it could not aerially inspect the
pipeline, it still had the ability to use whichever means of inspection it had used for the
previous 3 decades. In sum, the district court held that the tree did not materially interfere
with Conoco's easement sufficiently to outweigh Brown's right to fully use and enjoy her
property. Thus, the district court awarded Brown an injunction enjoining Conoco from
removing the tree. However, the district court provided that in the event of an emergency
requiring immediate access to the pipeline, Conoco has the right to take any necessary
action in the area of the tree.

Conoco appeals.

The essence of Conoco's argument is that the district court erred in the injunction
because the evidence shows that the tree substantially interferes with Conoco's easement.

When the trial court has made factual findings and conclusions of law, the
appellate court's function is to determine whether substantial competent evidence
supports the trial court's findings of fact, and whether the findings are sufficient to sustain
its conclusions of law. Southern Star Central Gas Pipeline, Inc. v. Cunning, 37 Kan.
App. 2d 807, 811, 157 P.3d 1120 (2007). Substantial evidence is evidence that contains
both relevance and substance and which provides a substantial factual basis for the
resolution of the issues. When reviewing a trial court's decision, an appellate court must
regard as true the evidence and all inferences that can be drawn from the evidence to
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support the trial court's factual findings and must ignore any contradictory evidence or
other inferences that could be drawn therefrom. Tucker v. Hugoton Energy Corp., 253
Kan. 373, 377, 855 P.2d 929 (1993). The district court's conclusions will not be disturbed
on appeal even though there may be evidence which may support a different outcome.
Haag v. Dry Basement, Inc., 11 Kan. App. 2d 649, 653, 732 P.2d 392, rev. denied 241
Kan. 838 (1987).

The parties agree that Conoco holds a properly recorded pipeline easement across
Brown's property, giving Conoco the right to "lay, maintain, operate, inspect and remove"
its pipeline. Once an easement has been formed, the landowner is the servient tenant and
the holder of the easement is the dominant tenant. Potter v. Northern Natural Gas Co.,
201 Kan 528, 530-31, 441 P.2d 802 (1968). The servient tenant may make any use of his
or her property which is consistent with or not calculated to interfere with the use of the
easement granted. Courts determine the character and extent of each parties' rights under
the easement by examining the language of the grant and the extent of the dominant
tenant's use of the easement at the time it was granted. Cunning, 37 Kan. App. 2d at 812.
An obstruction or disturbance of an easement is something that wrongfully interferes with
the privilege to which the dominant tenant is entitled by making its use of the easement
less convenient and beneficial. Mid-America Pipeline Co. v. Wietharn, 246 Kan. 238,
243, 787 P.2d 716 (1990). However, an obstruction or disturbance of an easement is not
actionable unless it is of such a material character as to interfere with the dominant
tenant's reasonable enjoyment of the easement. Aladdin Petroleum Corporation v. Gold
Crown Properties, Inc., 221 Kan. 579, 588, 561 P.2d 818 (1977).

The language of the grant forming the easement determines whether it is a specific
easement or a blanket easement. A specific easement is formed when the width, length,
and location of the easement for ingress and egress have been expressly described in the
instrument creating the easement. In a specific easement, the terms of the grant or
reservation are controlling, and no efforts should be made to consider what may be
necessary or reasonable use of the easement. Aladdin, 221 Kan. at 584. In other words, if
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the language of the instrument creating the easement mandates the easement be a specific
width, the servient tenant may not encroach upon the right-of-way within the area
described. Wietharn, 246 Kan. at 244. In a blanket easement, on the other hand, the
instrument creating the easement does not delineate specific dimensions of the easement
for ingress and egress as it crosses the servient tenant's property. See Cunning, 37 Kan.
App. 2d at 813; Aladdin, 221 Kan. at 585.

Here, as Conoco notes, its right-of-way in this case has some elements of both a
specific easement and a blanket easement. On one hand, the wording of the original
instruments describes general areas where the pipelines are to be laid. But on the other,
the right-of-way contract does not specify the exact width or location of the easement for
ingress and egress within which the servient tenant may not encroach. Consequently, the
present easement is best classified as a blanket easement because Conoco's rights are
imprecise and more difficult to enforce than they would be if the instrument explicitly
described the boundaries of the easement.

To summarize, to obtain the injunction it sought, Brown was required to show that
the tree did not constitute a material encroachment that interfered with Conoco's
reasonable enjoyment of the easement. See Cunning, 37 Kan. App. 2d at 813-14; Wichita
Wire, Inc. v. Lenox, 11 Kan. App. 2d 459, 462, 726 P.2d 287 (1986) ("At the trial level,
the burden of proof in an injunction action is upon the movant."). The district court
concluded the tree was not a material obstruction to Conoco's easement. The question
before us is whether that conclusion is supported by substantial competent evidence.

Both Conoco and Brown cite to this court's decision in Cunning to support their
claims that they should prevail in this case. In Cunning, the dominant tenant held a
blanket easement over the servient tenant's property, giving the dominant tenant the right
to maintain and inspect its pipeline as necessary or convenient. The servient tenant built a
garage adjacent to the pipeline, with a 41-inch clearance between the pipeline and the
wall of the garage. The dominant tenant brought a petition for ejectment, demanding the
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servient tenant remove the garage. At a bench trial, an expert for the dominant tenant
initially testified that excavation around the pipeline would be impossible if the garage
were only 41 inches away. On cross-examination, however, the expert admitted it may be
possible to excavate the pipeline if certain procedures took place. Two experts for the
servient tenant testified that the pipeline could be safely excavated despite the pipeline's
close proximity to the wall. The district court subsequently denied the dominant tenant's
petition for ejectment, finding that the dominant tenant had failed to meet its burden of
proof that the garage constituted an unreasonable interference with its easement. 37 Kan.
App. 2d at 810-11. The Court of Appeals affirmed the district court's decision on the
basis that it was supported by substantial competent evidence. The court declined to
reweigh the evidence or the credibility the district court had assigned to the testimony of
the witnesses each side had called. 37 Kan. App. 2d at 815.

There is a significant difference between this case and Cunning. In Cunning,
evidence was presented on both sides of the controlling issue of that case—whether the
garage caused a material impediment to the dominant tenant's easement by making
excavation of the pipeline unreasonably difficult or impossible. The dominant tenant's
expert answered "yes," the servient tenant's experts answered "no." The district court in
Cunning found the servient tenant's experts to be more convincing. In contrast, the
evidence that the tree roots could significantly harm the pipeline was undisputed in this
case. The district court found:

 the majority of the tree roots were in the first 3 feet from the ground's
surface;
 the pipeline was within 2 feet of the tree and likely buried at a depth of 3
feet, though it might be closer to the surface at this time;
 the close proximity of the tree to the pipeline would make excavation of the
pipeline more difficult, but still possible;
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 aerial surveillance is an important means of inspecting the pipeline, and the
tree impairs Conoco's ability to aerially inspect portions of the pipeline on
Brown's property;
 Conoco could incur an NOPV because of the tree, meaning Conoco would
face a penalty unless it did not remove the tree.

Despite the above facts, the district court concluded the tree did not constitute a
material interference to Conoco's ability to maintain the pipeline. The district court's
conclusions are not consistent with its factual findings or the evidence presented. The
district court heard undisputed evidence that the close proximity of the pipeline to tree
roots can cause significant problems. The testimony that tree roots can damage pipelines
was completely uncontested at trial. Brown's expert, Hogan, testified that tree roots travel
in the path of least resistance. But by Hogan's own admission, he is not an expert when it
comes to tree roots and their impact on pipelines. Furthermore, Hogan admitted the tree's
roots could extend over and across the pipeline and that the pipeline could be damaged
similar to the way a house's foundation can be damaged by tree roots. If there were any
evidence that the tree and the pipeline could coexist in such close proximity, the district
court's decision should be affirmed. But the facts of this case simply do not support such
a conclusion.

The risk of damage the tree roots could cause to the pipeline alone is sufficient to
show that the tree materially interferes with Conoco's privilege to use its easement, let
alone the undisputed testimony that the tree causes a significant interference with
Conoco's ability to inspect its pipeline. Considering there was no dispute that the tree
roots can cause significant harm to the pipeline, the district court's conclusion that the
tree did not cause a material interference with Conoco's easement was unsupported by
substantial competent evidence.

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Finally, we must determine whether the district court erred by awarding Brown an
injunction. Conoco contends the district court erred in awarding an injunction because the
legal requirements for the granting of an injunction were not met in this case.

The grant or denial of injunctive relief is an action in equity and involves the
exercise of judicial discretion. Appellate courts generally will not interfere with a district
court's grant or denial of an injunction unless the district court abused its discretion.
However, when an appeal frames questions of law, including the threshold legal
requirements for injunctive relief in a particular case, appellate review is unlimited.
Friess v. Quest Cherokee, 42 Kan. App. 2d 60, 63-64, 209 P.3d 722 (2009).

The district court in this case awarded a prohibitory injunction, as opposed to a
mandatory injunction. A mandatory injunction requires the performance of an act, while a
prohibitory injunction requires a party to refrain from performing a particular act.
Wietharn, 246 Kan. at 242. There are four elements Brown was obligated to prove in
order to obtain injunctive relief:

"'(1) substantial likelihood that the movant will eventually prevail on the merits; (2) a
showing that the movant will suffer irreparable injury unless the injunction issues; (3)
proof that the threatened injury to the movant outweighs whatever damage the proposed
injunction may cause the opposing parties; and (4) a showing that the injunction, if
issued, would not be adverse to the public interest.' [Citations omitted.]" Lenox, 11 Kan.
App. 2d at 462.

Conoco argues the district court made inadequate findings to support some of the
above required elements. For example, Conoco argues monetary damages would have
been sufficient to compensate Brown for the loss of her tree. Conoco further contends the
threat of injury it faces greatly outweighs the possible injuries Brown would incur if the
tree was removed, and that the tree causes undue risks to the public.

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It is unnecessary to examine whether the district court erred by failing to weigh the
above four elements. Before the above elements can be applied, the first question which
must be addressed is whether an equitable remedy is appropriate in the first place.
"[E]quity never flies in the face of positive law, nor is it invokable to unsettle thoroughly
established legal principles." Moore v. McPherson, 106 Kan. 268, 273, 187 P. 884
(1920). A party cannot obtain an equitable remedy unless there is a wrong for which a
remedy is necessary. First Nat'l Bank & Trust Co. v. Wetzel, 42 Kan. App. 2d 924, 929,
219 P.3d 819 (2009). Thus, to be entitled to an injunction, Brown must have suffered a
wrong requiring an equitable remedy.

Brown has not been wronged in this case. There is no dispute that Conoco has the
right under its easement to maintain the pipeline. The undisputed facts of this case show
that the tree materially obstructs Conoco's reasonable enjoyment of its easement. There is
therefore no reason to analyze the above elements. The district court's injunction is
vacated and the matter remanded so that Conoco can exercise the privileges it enjoys
under the easement.

Vacated and remanded.

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REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court
granted a motion to publish pursuant to Rule 7.04 (2011 Kan. Ct. R. Annot. 57). The
published version was filed with the Clerk of the Appellate Courts on February 28, 2012.