My habit for many years, dating back to my trial-court clerking days, is to check for newly released appellate opinions at about ten o'clock every morning. There obviously are days that I can't do this; sometimes I'm in hearings, sometimes I'm with clients, etc. When this happens I usually just catch up the next day or next week. But now for the first time I've had the unhappy experience of being unable to check for new opinions because I was in trial, and having one of those opinions actually relate to the trial that was in progress.
The case in question is Sunoco Pipeline LP v. Teter, which was decided by the Seventh District on September 29. Generally speaking, Teter relates to whether the petitioner is entitled to appropriate a permanent easement across the respondent's land for the purpose of building and maintaining a propane and butane pipeline; R.C. 1723.01 allows pipeline companies to appropriate such land as is "necessary" for those purposes. The appellate court affirmed the trial court's ruling that the petitioner was entitled to appropriate the easement.
As it happens, on September 29 I was in the penultimate day of trial on an appropriation case--though ours was a railroad appropriation, not a pipeline appropriation. Section 4961.13 of the Revised Code permits railroads to appropriate such property as is "necessary for its railroad." Because there are few railroad "necessity" cases, my opponents and I each turned to other appropriation case law. (Astute readers may recall my interest in the "necessity" issue from earlier coverage of an appropriation case.) I am particularly fond of turnpike appropriation case law, which I think favors our interpretation of the railroad statute. The petitioner was quite happy to discover, the day before our closing arguments, this new case permitting a pipeline appropriation. I was able to read the case and offer what I believe were convincing distinctions between the facts of Teter and the facts of our case, but the court has taken the matter under advisement and we don't yet know the outcome.
Now, however, there have been some new developments in Teter. Last Tuesday the property owner filed a notice of appeal to the Ohio Supreme Court, and filed an emergency motion for stay of the Seventh District's decision. On Wednesday, the Court sua sponte ordered Sunoco to file a brief in opposition to the motion for emergency stay--with the brief due by noon on Thursday. On Friday, the Court granted the motion for emergency stay, and did not require the property owner to post any bond.
Of course, granting a motion for emergency stay does not mean that the Seventh District's decision in Teter will be reversed. In fact, it doesn't even mean the Supreme Court will accept the case. Teter will still have to file a jurisdictional brief (due November 14), which Sunoco can and surely will oppose. Assuming the case is accepted, it will likely be fully briefed some time late in the spring of 2017, with a decision to follow probably late that year.
In other words, if the case is accepted, then by granting the stay the Court likely will have delayed construction on the pipeline over Teter's property for at least 15 months, and possibly even more. Would the Court grant such a long no-bond stay if it didn't have reservations about the decision? Only time will tell. Stay tuned.
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