The opinion of the court was delivered by: MICHAEL A. TELESCA
The plaintiff utility company ("Columbia Gas") seeks to permanently enjoin defendants from locating residences and other buildings and appurtenances within 200 feet of its right of way for a natural gas well. The easement conveyance was signed in 1960; plaintiff paid $ 1100 to the former owner of the land for the easement. Defendant Bishop presently has two house trailers located within 200 feet of the right of way, one of which he occupies and one of which he rents out to defendants Floyd and Cindy Washburn. The Washburns reside in the trailer with their small children, one of whom is deaf. The rented trailer is 52 feet from the wellhead, with its septic system even closer (36 feet). Plaintiff states that the proximity of these residences and the septic system to the wellhead, with its potential for explosion and/or release of poisonous gases, compels the relocation of the trailers and of their appurtenances, including the septic system.
Plaintiff originally moved for summary judgment in July 1991. Upon the representations of the parties that settlement negotiations were ongoing, no decision on the motion issued. In April 1992, the parties represented to the Court that the case was settled and the case was accordingly dismissed.
Plaintiff now moves to reopen the case and asks the Court to determine its motion for summary judgment. Defendant opposes the motion, essentially arguing that this Court lacks diversity jurisdiction over the case because, while Columbia Gas is a Delaware corporation with its principal place of business in West Virginia, it is "doing business" in New York State. Under a plain reading of the diversity statute, this argument is too specious to warrant comment.
See 28 U.S.C. § 1332(c); see, e.g., Wear-Ever Aluminum, Inc. v. Sipos, 184 F. Supp. 364, 366 (S.D.N.Y. 1960) (Mere fact that corporation does business in a state has no affect on its citizenship for purposes of diversity.)
Neither party moves to enforce the settlement agreement, which would provide an alternate remedy. Plaintiff's motion papers indicate that the parties disputed whether the settlement required the defendant to remove only the house trailers or the house trailers and the septic system.
The case is properly before this Court pursuant to its diversity jurisdiction. The settlement having failed, I find it appropriate to reopen the case and to consider the merits of plaintiff's motion for summary judgment.
Columbia Gas moves for summary judgment, asserting its right to preclude defendants' present use of the land as a matter of law, based on the language of the easement which provides that plaintiff has not only exclusive mineral and gas rights but also the right
to exercise all such other rights thereon as [plaintiff] deems necessary or convenient for carrying on the aforementioned gas operations, including the right of ingress, egress and regress to and from said land . . . (emphasis added).
In support of its motion Columbia Gas has submitted the affidavits of four of its employees to the effect that the trailers have only recently been placed on the land and that their presence not only will make repair/maintenance of the wellhead difficult/impossible but also may pose a real danger to their occupants.
The general rule is that one who owns land subject to an easement has a right to use that land in any way not inconsistent with the easement and that the extent of the easement claimed must be determined by the true construction of the grant which is created, aided by any surrounding circumstances ...