Reid v. Washington Gas Light Co.

Marbury, J., delivered the opinion of the Court. By their amended bill of complaint filed in the Circuit Court for Montgomery County the appellants sought a mandatory injunction ordering the removal of a sixteen inch gas pipe line from their property. This appeal is from an order of court denying appellants’ motion for summary judgment and granting a similar motion by the appellee. The sole question below and in this Court is whether under the terms of the grant of ease ⁵⁴⁷ ment involved the appellee had the legal right to substitute a sixteen inch gas pipe line for the twelve inch pipe originally laid.

The case was presented to us on an agreed statement of facts which may be summarized as follows. Appellants purchased about seventeen acres of land in Montgomery County in March of 1954, which was subject to a right-of-way dated October 7, 1930 and properly recorded, in favor of the Maryland Gas Transmission Corporation, whose successor in interest is the appellee, Washington Gas Light Company. Soon after the grant of this easement a twelve inch (inside diameter) steel gas transmission line was placed across the property at a depth of about three feet. This pipeline remained in place until late 1957 or early 1958 when the appellee went upon the servient land, removed the twelve inch gas pipe, and replaced it with a steel sixteen inch (inside diameter) pipe.

No written notice was given of this intended action by the gas company, although one of the owners was notified orally. The pipeline transverses the industrially zoned land of the appellants for a distance of about 585 feet. On April 2, 1958, the appellants’ attorney, who was also one of the owners of the property as a tenant in common, wrote the president of the gas company complaining of the company’s action. The letter was acknowledged on April 4, 1958, and a meeting was held shortly thereafter to discuss the complaint.

However nothing constructive seems to have come of this and no further discussions were had until 1962. The sixteen inch pipe has meanwhile remained in place since its installation. Washington Gas Light Company in 1957 was notified by the Maryland State Roads Commission that Viers Mill Road in Montgomery County was to be widened and improved, and that its gas transmission line originating in Rockville would have to be relocated as a part of the road improvement program. It was at this time that the company decided to replace the entire line leading to the gas storage plant in Rockville, a part of which crossed the land of the appellants.

The removal and replacement of the pipeline was accomplished by excavating a trench to the then existing twelve inch line, cutting it into sections and removing it. The sixteen inch pipe was then installed in the identical location and the trench was backfilled ⁵⁴⁸ and compacted. It was agreed that under normal pressure and flow conditions the sixteen inch pipeline will deliver approximately seventy-five per cent more gas than the twelve inch line. The pertinent parts of the grant of easement are as follows: “For and in consideration of the sum of Thirty eight Dollars * * * [the then owners] grant unto MARYLAND GAS TRANSMISSION CORPORATION, its successors and assigns * * * the right to lay, maintain, operate and remove a pipe Ime for the transmission of gas * * * through the lands of the Grantor in Fourth Election District, Montgomery County * * *.

(Emphasis supplied). “The Grantee is further granted the right, at any time or times within ten (10) years from the date hereof, to lay one or more additional lines of pipe alongside of the first line herein provided, upon the payment of the price above mentioned for each additional line to be laid, and to maintain, operate and remove the same, subject to the same provisions. “Where necessary or convenient the Grantee may haul over the above described lands pipe and material as may be needed in the construction or maintenance of the line or lines on adjoining lands. “It is agreed that the gas line or lines to be laid under this grant shall be constructed and maintained below cultivation, so that the Grantor may fully use and enjoy the premises, subject to the rights of the Grantee to maintain and operate said line or lines. “The Grantee further agrees to pay for any damages that may arise from the maintenance, operation or removal of said line or lines.” Appellants concede that the right to replace a worn out pipe is within the ambit of “maintenance”, but they say that the size of the pipe can not be increased without the consent of the property owners. This Court has for a good many years adhered to the gen ⁵⁴⁹ erally accepted rule that since an easement is a restriction upon the rights of the servient property owner, no alteration can be made by the owner of the dominant estate which would increase such restriction except by mutual consent of both parties. W. Arlington L. Co. v. Flannery, 115 Md. 274, 279 , 80 Atl. 965 . The test to determine the right to make a particular alteration appears to be whether the change is so substantial as to result in the creation and substitution of a different servitude from that which previously existed. 17A Am.

Jur., Easements, § 134. In other words, if the alteration is merely one of quality and not substance there will be no resulting surcharge to the servient estate. Accordingly we are called upon to construe the grant in the light of settled rules of construction to determine first, if the appellee had the right under the terms of the easement to substitute the sixteen inch pipe, and second, if it had this right, did the