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COLUMBIA GAS TRANSMISSION CORP. v. SAVAGE

July 28, 1994

COLUMBIA GAS TRANSMISSION CORPORATION, Plaintiff
v.
ALVIN SAVAGE, Defendant


Richard P. Conaboy, United States District Judge


The opinion of the court was delivered by: RICHARD P. CONABOY

This is a civil action brought pursuant to diversity of citizenship, 28 U.S.C. ยง 1332(a)(1). Plaintiff, Columbia Gas Transmission Corporation is a Delaware corporation. Plaintiff is engaged in the production, storage, transmission and sale of natural gas. Defendant, Alvin Savage, is a resident of East Stroudsburg, Pennsylvania.

 Plaintiff filed this action on August 30, 1990, seeking an order both restraining Defendant Alvin Savage from encroaching on what Plaintiff claims is its right of way and directing the Defendant to remove all structures that encroach on Plaintiff's right of way. This action was stayed by Order of this Court on August 6, 1991, at Plaintiff's request until the United States Bankruptcy Court authorized Columbia Gas' counsel to proceed on behalf of the debtor, Columbia Gas. After receiving authorization from the Bankruptcy Court to proceed, plaintiff filed a Motion to Reopen the case, which this Court granted on February 23, 1993.

 The action is presently before the Court on the Plaintiff's Motion for Summary Judgment, with a brief in support. (Doc.No. 17 & 19). Defendant has filed a brief in opposition. (Doc.No. 22). Plaintiff has filed a reply brief. (Doc.No. 24). The matter is now ripe for review.

 BACKGROUND

 On March 26, 1947, the Manufacturers Light and Heat Company acquired a right-of-way *fn1" to lay a 14-inch gas pipeline. Gustavaus K Focke, owner of the property at the time, allowed Manufacturers Light and Heat Company to maintain, operate, repair and remove the pipeline. Specifically, the deed by which the right of way was granted contains the following language:

 
Gustavus K. Focke, widower, does hereby grant to the Manufacturers Light & heat Company its successor and assigns, the right to lay a 14 inch pipeline, and maintain, operate, repair and remove said lines . . .
 
with the right of ingress, egress and regress to and from the same, the said Grantor to fully use and enjoy the said premises, except for the purposes hereinbefore granted to the said Company, and said Company to pay any damages which may arise to crops and fences from the pipeline . . . And it is hereby further agreed, that the said Company, its successors and assigns, may any time lay, maintain, operate, repair and remove a second line of pipe alongside of the first line as consideration and subject to the same conditions; also may change the size of its pipes, the damages, if any, to crops and surface in making such change to be paid by the Company.
 
This option shall be null and void unless survey is accepted and consideration mentioned above paid or tendered to grantor three (3) years from the date hereof.

 The Manufacturers Light and Heat Company merged with Columbia Gas Transmission Corporation on June 30, 1971, thereby making Plaintiff Columbia Gas the owner of the pipeline and the right of way Plaintiff's predecessor had acquired. Presently, Columbia Gas operates the pipeline as transmission line 1278 and transmits natural gas in the pipeline. Two of the lots the pipeline runs through, lots 24 and 25 are owned by Defendant Savage.

 The right-of-way as depicted was also described in the deed Defendant Savage was given when he acquired the property from James C. Rinker and Wilma M. Rinker on July 22, 1986.

 When defendant Savage purchased the property from James and Wilma Rinker, on July 22, 1986, the deed described the right of way as follows:

 
"UNDER AND SUBJECT to the right-of-way of the Manufacturers Heat & Light Company, having a width of fifty (50') feet, as ...

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