The opinion of the court was delivered by: SYLVIA H. RAMBO
Before the court is Plaintiff's motion for a preliminary injunction and Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). A hearing was held on March 13, 1993, and subsequently briefs were submitted on the issue of whether this court has subject matter jurisdiction over the captioned action. The matter is now ripe for disposition.
1) Plaintiff Texas Eastern Transmission Corporation is a Delaware corporation, registered to do business in Pennsylvania, with its principal place of business in Texas. Plaintiff operates natural gas pipelines, several of which run through Pennsylvania.
2) Plaintiff is the successor in interest to Texas Eastern Penn-Jersey Transmission Corporation ["Penn-Jersey"].
3) Defendants Konstantinos and Tina Giannaris are Pennsylvania residents who own a parcel of property in Perry County, Pennsylvania.
4) Penn-Jersey purchased from Benjamin and Sara Graybill three right-of-way grants in 1954, 1958, and 1960. These grants gave the Graybills the right to maintain and operate the Pipelines laid in the right-of-way. The parties do not dispute the legality of these grants.
5) All three grants provide the following:
the said Grantor does hereby Grant, Bargain, Sell, Convey and Warrant unto Texas Eastern Penn-Jersey Transmission Corporation, a Delaware Corporation (herein styled Grantee), its successors and assigns, a right of way and easement to construct, lay, maintain, operate, alter, repair, remove, change the size of, and replace pipe lines and appurtenances thereto (including without limitation Corrosion Control equipment) for the transportation of oil, gas, petroleum products or any other liquids, gases, or substances which can be transported through pipe lines, the Grantee to have the right to select [text crossed out] the route under, upon, over and through lands which the undersigned owns or in which the undersigned has an interest . . .
6) Defendants purchased the Graybill property.
7) Four of Plaintiff's pipelines, parallel to one another, traverse Defendants' property.
8) Three routes are available to reach the pipelines on Defendants' property:
i. Plaintiff may travel up Township Road and turn left on Barnette Drive. Barnette Drive runs approximately perpendicular to the pipelines. Plaintiff then would proceed through Ms. Anna Cook's property along the pipeline, over several streams, and across a barbed wire fence. The distance from Barnette Drive to the barbed wire fence is approximately three eighths of one mile. Defendants do not object to removal of this fence, but are unsure if they own it. The streams are approximately six to twelve inches in depth; they could be crossed by a four wheel drive vehicle.
ii. Plaintiff could travel up Township Road and turn left on the private lane. The lane runs approximately perpendicular to the subject pipelines. Plaintiff would then cross a small bridge, traverse Defendants' property and then pass around, or through, a fence which lies to the right of the lane. The wooden bridge can not support extremely heavy equipment, but will support pickup trucks.
iii. Plaintiff could go over the mountain, ending up on Defendants' property. This route is about two to three miles in length, is, often not accessible and traverses steep inclines.
9) The private lane serves five families who own land in the proximity of the disputed area. Some of the families live on the close side, some on the far side, of the pipelines.
10) The fence off the lane which blocks access to the pipelines was built by agreement by Plaintiff and Defendants to keep out four wheel vehicles from the right-of-way.
11) A locked gate is built into this fence. Plaintiff does not have a key to this lock.
12) The mountain and Barnette Drive routes are longer than using the lane to reach the pipelines.
13) Plaintiff used the lane continually until 1988.
14) Defendants forbid Plaintiff from driving around the locked gate, claiming that that would constitute illegal trespass.
15) The pipeline transports natural gas in a vapor state; this substance is highly flammable and can be both auto- and pilot-ignited.
16) Several means of inspection are utilized in maintaining the pipelines.
17) Aerial inspections, from a very low altitude, are performed, at the minimum, monthly, with the goal of being performed weekly. These inspections are used to detect construction, floods, erosion, or dead ...