Kelly v. Enbridge (ILCD Doc. No. 07-3245) and Maintaining Easements
In this case, the original easement, granted in 1939 contained terms authorizing the holder to "the right to lay, operate and maintain a pipe line for the transportation of oil, gas, gasoline and/or other fluids, the grantee selecting the route, upon, over and through the following described land..." and further authorized "the right to lay, operate and maintain, adjacent to and parallel with the first, a second pipe line,..." and the easement would exist "so long as such pipe lines or other structures are maintained;..."
Over the years multiple companies became holders and transferred their holding in the easement to others until the defendant, Enbridge, LLC, became the current holder. Enbridge desired to build a second pipeline and continue use of the first pipeline. The plaintiff's owned the land that the easement ran on. Plaintiff's brought suit to stop the building of the second pipeline seeking to extinguish the easement by proving that the easement had been abandoned. A previous order discussing the testimony allowed by the plaintiff's expert and applying the standards of the federal rules of evidence to his testimony can be found here.
The parties moved for summary judgment against each other and the court rendered an opinion which is instructive for any company that may have particular easement that they are not using, but that may want to preserve the easement as an asset for a future conveyance. The court found that the easement was still in place and that Enbridge had the right to full use of the easement.
- The court noted that abandonment of an easement "requires proof of non-use plus some affirmative act that manifests an intent to abandon the Easement. The affirmative act must destroy the object for which the Easement was established or the means of its enjoyment." It then went on to find that there was no evidence of abandonment on these terms. The fact that the pipeline had laid unused for a period was not an affirmative act, and the plaintiff's presented no evidence of an affirmative act of destruction. Although previous entities entitled to the easement had not used the pipeline, they had never moved or destroyed the pipes, they had taken measures to determine that the pipeline was in good condition and they had maintained the signs around the pipeline - expending funds to maintain the pipeline.
A large portion of any particular right in an easement and its abandonment will depend on the language in the conveyance. In this case, and in others, checking the easements that a company holds even if they date back to 1939 could turn out to be profitable with just a little maintenance.
