Date: 10-12-2013

Case Style: DCP Southern Hills Pipeline, LLC v. Terry M. Kyle

Case Number: CJ-2012-2820

Judge: Roger H. Stuart

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Jayne Jarnigan Robertson

Defendant's Attorney: Gregg R. Renegar

Description: DCP Southern Hills Pipeline, LLC sued Terry M. Kyle, Cynthia A. Birdsong, Richard P. Dulaney, William E. Schlitter and James C. Chander, co-executors of the Estate of L. Thomas Dulaney, deceased, and Richard P. Dulaney on eminent domain theories seeking to obtain right-of-way for a pipeline by condemnation claiming:

1. Plaintiff is a Delaware limited liability company, duly registered with the Oklahoma Secretary of State and authorized to do business in the State of Oklahoma.

2. Plaintiff is engaged in business as a pipeline company.

3. Naintiff filed an acceptance with the Oklahoma Corporation Commission of 52 Okla.Stat. § 21, et seq. and 52 Okla.Stat. § 51, et seq., and of the Constitution of the State of Oklahoma; therefore, Plaintiff is authorized and empowered by the Constitution and statutes of the State of Oklahoma to exercise the right of eminent domain in furtherance of its purposes as a pipeline company, including acquisition of necessary easements and rights of way for the construction and operation of common carrier natural gas liquids pipelines.

4. Plaintiff has deemed it advisable and necessary to construct, operate and maintain a pipeline and such other equipment and facilities as are required upon and across certain lands located in Oklahoma County, Oklahoma, being a part of the West Half (W/2) of Section Twenty-two (22), Township Fourteen (14) North, Range One (1) West of the Indian Meridian, Oklahoma County, Oklahoma, being more particularly described as follows: Commencing at the NW/C of the NW/4 of said Section 22; thence South 0001057 East along the West line of W/2 of Section 22 for a distance of 2517.08 feet; thence North 89°49’03” East for a distance of 620.43 feet to the point or place of beginning; thence North 63° 181521 East for a distance of 1132.03 feet; thence South 2t°25’07” East for a distance of 184.42 feet to a point of curve; thence along said curve being to the right having a radius of 690.29 feet and a chord bearing of South 13°59’24” East and a chord distance of 178.49 feet for a length of 178.99 feet to a point of compound curve; thence along said curve being to the right having a radius of 242.88 feet and a chord bearing of South 41°48’lS” West and a chord distance of 363.06 feet for a length of 4 10.05 feet; thence North 8904914811 West for a distance of 179.85 feet to a point of curve; thence along said curve bearing to the left having a radius of 256.28 feet and a chord bearing of South 75°06’13” West and a chord distance of 133.38 feet for a length of 134.93 feet; thence South 60°00’15” West for a distance of 288.92 feet to a point of curve; thence along said curve bearing to the right having a radius of 489.35 feet and a chord bearing of South 67°43’ 16” West and a chord distance of 131.42 feet for a length of 131 82 feet; thence North 30°44 ‘38” West for a distance of 390.00 feet to the point or place of beginning. Also known as Tract 31, Hickory Hills, unrecorded plat (the “Property”).

5. The necessary easement and right of way for construction, operation and maintenance of the pipeline will extend for a total distance of 23.91 rods across the Property, as shown by the survey attached as Exhibit “A” and made a part hereof.

6. Defendants Terry M. Kyle and Cynthia A. Birdsong are the record owners of the Property.

7. Defendants Richard P. Dulaney, William E. Schlitter and James C. Chandler, Co-Executors of the Estate of L. Thomas Dulaney, Jr., Deceased; Richard P. Dulaney, individually; County Treasurer of Oklahoma County and Board of County Commissioners of Oklahoma County may claim some right, title or interest in the Property or in the commissioners’ award rendered herein by virtue of prior conveyances or of ad valorem taxes which may be due or payable.

8. In order to operate and maintain the pipeline, it is necessary that Plaintiff, its successors and assigns, have and obtain a permanent easement fifty feet (50’) in width along the centerline route and location over, through, under, and across the Property as more particularly described on Exhibit “A” attached hereto and made a part hereof (the “Permanent Easement”), for the right of ingress and egress, and for the right now or in the future to survey, construct, lay, maintain, inspect, erect, alter, operate, protect, repair, replace with the same or different size pipe and remove one (1) pipeline (the “Pipeline”) and any above ground valves, appurtenances, cathodic protection equipment, including but not limited to necessary rectifiers mounted above ground on poles with wires connecting to a source of AC or DC electricity, ground beds, cables, and deep wells; communication lines, electric lines and appurtenances (collectively the “Facilities”), together with fences and structures as required to enclose any of the above-ground Facilities at the sole discretion of Plaintiff, for the use and prudent operation of the Pipeline for gathering and transportation of hydrocarbons and any liquids that can be transported through the Pipeline. Plaintiff further requires that the Permanent Easement include such portions of the surface as are required now or in the future for the construction, installation, operation and maintenance of the Pipeline and Facilities, and further Plaintiff shall have the right to remove or clear obstructions within the Permanent Easement that may injure, endanger, or interfere with the construction, installation, operation, maintenance or removal of the Pipeline or Facilities, including without limitation, trees, shrubs and brush.

9. Plaintiff will bury the Pipeline to a sufficient depth based on soil conditions and terrain, except insofar as surface installation of Facilities is required. Further, Plaintiff will restore the ground surface as nearly as practicable to the original contour existing immediately prior to commencement of any work, will provide suitable ditch cross-overs during construction, and will install H-frame bracing before cutting any fences.

10. During initial construction and installation of the Pipeline and Facilities, it is also necessary that Plaintiff have additional temporary workspace of twenty-five feet (25’) in width adjacent to and parallel with the Permanent Easement (the “Temporary Easement”), including but not limited to rights of ingress and egress, together with such additional workspace as necessary for difficult crossings such as roads, creeks and railroads, which Temporary Easement shall terminate by its own terms six (6) months after such date as the Pipeline and Facilities shall be frilly and completely constructed on the Property.

11. The owner of the Property shall have and retain the full right to use and enjoy said property and premises subject only to the easement rights to be acquired by Plaintiff in this proceeding, and except further that it is necessary that Defendants, their successors and assigns, be restricted from (a) impounding water or building, constructing, creating, installing, or permitting others to impound water, or to build, construct, create or install any buildings, structures, fences, trees, engineering works or any obstructions on or within the Permanent Easement, (b) altering the grade of the Permanent Easement without the express written consent of the Plaintiff, and (c) placing or permitting others to place any debris on or within the Permanent Easement.

12. Plaintiff shall have the right to clear and keep cleared from within the Permanent Easement all trees, brush, shrubs, undergrowth, buildings, structures, improvements, or other obstructions, though Plaintiff shall have no obligation to do so. After the Pipeline and Facilities shall have been installed, Plaintiff shall not be liable for damages caused within the Permanent Easement by keeping the Permanent Easement clear of trees, brush, shrubs, undergrowth, buildings, structures, improvements, or other obstructions in the exercise of its rights acquired herein.

13. Plaintiff shall have the right, at its option, to install gates in fences crossing the Permanent Easement.

14. The easements sought to be acquired by Plaintiff upon and across the Property are necessary in order to perform Plaintiffs duties as a common carrier natural gas liquids pipeline. Plaintiff has determined the necessity of same by filing its acceptance with the Oklahoma Corporation Commission as shown by the Acceptance attached hereto as Exhibit “B” and made a part hereof

15. Prior to the commencement of this action, Plaintiff endeavored in good faith to acquire by purchase from Defendants Terry M. Kyle and Cynthia A. Birdsong an appropriate easement for the Pipeline and Facilities, but said Defendants have refused and continue to refuse to grant Plaintiff the necessary easement for such Pipeline and Facilities for any fair and reasonable consideration.

WHEREFORE, plaintiff prays that the Court (a) set a date for the hearing of this Petition, (b) upon such hearing, after due and legal notice has been given to the Defendants ordered by this Court and as prescribed by law, enter an order appointing three disinterested freeholders of Oklahoma County, Oklahoma, to be selected by the Court as Commissioners, and who are not interested in a like question, to inspect the Property and to consider the injury which the owner of the Property will or may sustain by reason of the appropriation of the same for the public purpose set forth above, and to determine just compensation due to the owner, and to forthwith make their report in writing to the Court setting forth the amount payable by Plaintiff as damages to the Property for the taking of the Permanent Easement and Temporary Easement, and (c) that upon payment to the Court Clerk of such sum as may be assessed and reported herein, an easement and right of way across, through, over and under the Property be vested in Plaintiff and Plaintiff be authorized to enter upon the Property and to take, appropriate and use the same for the purposes set forth above.

The pre-trial order entered by the Court provided in part:

This matter is an eminent domain action brought by DCP Southern Hills Pipeline, LLC (“DCP”) for the acquisition of necessary easements and rights-of-way for the construction and operation of a common carrier natural gas liquids pipeline (“Pipeline”) located upon and across certain lands located in Oklahoma County, Oklahoma, including a portion of land (“Subject Property”) owned by the Defendants Terry M. Kyle and Cynthia A. Birdsong (“Kyle/Birdsong”). The sole issue remaining to be determined is the damage to the Subject Property, which is described as Tract 31, Hickory Hills Addition, and located Northeast of Danforth Road and Hiwassee Road caused by the taking of the easement by DCP.


The Commissioner awarded the Defendant $9,200.00.

Outcome: Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

Comments: