The opinion of the court was delivered by: WILLIAM L. STANDISH
Plaintiff, Columbia Gas Transmission Corporation (Columbia), filed this civil action on December 21, 1993, seeking injunctive relief against defendant, Michael D. Tarbuck (Tarbuck). Specifically, Columbia seeks an order directing Tarbuck to remove excess dirt and rock from a right-of-way owned by Columbia. Further, Columbia seeks to enjoin Tarbuck from further dumping of dirt and rock on the right-of-way. After a hearing on Columbia's motion for preliminary injunctive relief, and for the reasons set forth below, the court concludes that the motion will be granted.
Based on the present record, the court concludes that it is reasonably probable that the following facts will be established at a final hearing:
1. Columbia is a Delaware corporation with its principal place of business in Charleston, West Virginia. Columbia is engaged in the business of transporting natural gas in interstate commerce for ultimate consumption by the general public. Tarbuck is a citizen of the Commonwealth of Pennsylvania.
2. By deed dated April 25, 1991, two adjacent parcels of property located in South Strabane Township, Washington County, Pennsylvania were conveyed to Tarbuck by the children of Leslie and Carmel Valitutti. (Exhibit 5). The "first parcel" referred to in the deed was formerly owned by Carmel and Josephine Passalacqua. On August 15, 1946, Columbia's predecessor in interest, The Manufacturers Light & Heat Company (Manufacturers), appropriated a strip of land over the Passalacqua property "for the purpose of constructing, operating, maintaining, inspecting, renewing and removing a 20 inch pipe line to be used for the transportation and distribution of gas." The documents relating to the appropriation specifically describe the right-of-way as being 50 feet in width. (Exhibits 22 and 23). On August 8, 1963, the Passalacquas conveyed the "first parcel" to Leslie and Carmel Valitutti. The deed recording this transfer specifically reserves Manufacturers' right-of-way over the property. (Exhibit 24). The Valituttis conveyed this property to their children by deed dated July 26, 1990. (Exhibit 25). The right-of-way on the "first parcel" is located on the back of Tarbuck's property.
3. The "second parcel" referred to in Tarbuck's deed was formerly owned by Walker and Elizabeth Wylie. On April 18, 1946, the Wylies granted the following right-of-way over their property to Manufacturers:
". . . the right to lay a 20 inch pipe line, and maintain, operate, repair and remove said lines along a line which has been surveyed for the same over and through their land situate in South Strabane Township Washington County, State of Pennsylvania, bounded and described as follows:
On the North by lands of Pittsburgh Coal Co.; George Puskarich On the East by lands of State Highway, old route 19 On the South by lands of Mr. J.I. Miller, et al On the West by lands of Mrs. Tillie Lewis; Pittsburgh Coal Company
with the right of ingress, egress and regress to and from the same, . . .
The width of this right-of-way is not specified. At some point in time, Leslie and Carmel Valitutti acquired the "second parcel" from the Wylies, subject to Manufacturers' right-of-way.
By deed dated September 26, 1990, the Valituttis conveyed the "second parcel" to their children. The right-of-way on the "second parcel" is located near Route 19, a major highway, on the front of Tarbuck's property.
4. Columbia is the present owner of the 20-inch high pressure, natural gas transmission pipeline which traverses the two parcels of property referred to in Tarbuck's deed. This major pipeline is known as Line 1570, and it transmits 200 million cubic feet of gas per day.
The normal depth of "cover" for a gas pipeline, such as Line 1570, is three to five feet.
Line 1570 services 5 or 6 commercial customers in the vicinity of Tarbuck's property, including the Meadowlands Race Track, and approximately 30 residential customers.
5. Pursuant to Federal regulations, Columbia is required to conduct regular inspections and tests of Line 1570, including facility patrols, instrument leak surveys and electrical surveys. During a facility patrol, which is conducted every 3 months, a representative of Columbia walks over the right-of-way to check for erosion, landslides or the smell of gas. When an instrument leak survey is conducted, instruments are used to check for leaks because the instruments are more sensitive than a person's sense of smell. With respect to ...