Gas pipelines, surveys, and you

Today the Ninth District decided Nexus Gas Transmission v. Houston, a case interpreting the statute authorizing natural gas pipeline companies to enter onto private property for the purpose of surveying and appropriating property for pipelines and related operations.
Among many other things, R.C. 1723.01 provides that pipeline companies "may enter upon any private land to examine or survey lines for its tubing, pipes, conduits, poles, and wires . . . and may appropriate so much of such land, or any right or interest therein, as is deemed necessary for the laying down or building of such tubing, conduits, pipes, dams, poles, wires," and so on.

Nexus--which the parties by now do not dispute is a company that falls within the statute--intended to enter onto private land for the purpose of conducting surveys. The landowners refused entry on the grounds that the statute required the pipeline company to first have determined that it was "necessary" to appropriate the land.  In other words, the landowners interpreted the "as is deemed necessary" clause quoted above to modify not just the clause that immediately precedes it ("may appropriate so much of such land") but also the several other preceding phrases, such that the operative phrasing would permit Nexus to "enter upon any private land to examine or survey . . . so much of such land . . . as is deemed necessary" for the pipeline.

The Ninth District disagreed, holding that a natural reading of the statute is that the "and" merely joins the right to "appropriate so much of such land . . . as is deemed necessary" with the other preceding rights, including the right to "enter upon any private land to examine or survey lines . . . ."  

With this holding the court dodged what is perhaps the more interesting question of what constitutes "necessity" under the statute. Does land become "necessary" for a pipeline merely because it is convenient for the pipeline company to use that land? Or does "necessary" mean, in fact, necessary? This issue has been (and continues to be) a hot-button issue in other appropriation contexts such as municipalities, turnpikes, and railroads--but then, the appropriation statute for pipeline companies employs somewhat unique authorizing language.  A question for our blogger to wrestle with another day.