WV Supreme Court Decision Disallowing Survey Access for Mountain Valley Pipeline

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2016 Term
FILED
November 15, 2016
No. 15-0919 released at 3:00 p.m.
RORY L. PERRY, II CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

MOUNTAIN VALLEY PIPELINE, LLC,

Defendant Below, Petitioner

V.
BRIAN C. MCCURDY AND DORIS W. MCCURDY,
Plaintiffs Below, Respondents
Appeal from the Circuit Court of Monroe County

Honorable Robert A. Irons, Judge

Civil Action No. 15-C-19

AFFIRMED

Submitted: October 11, 2016

Filed: November 15, 2016

Charles S. Piccirillo Derek O. Teaney
K. Brian Adkins Appalachian Mountain Advocates, Inc.
Shaffer & Shaffer, PLLC Lewisburg, West Virginia
Madison, West Virginia Attorney for Respondents
Attorneys for Petitioner
JUSTICE DAVIS delivered the Opinion of the Court.

CHIEF JUSTICE KETCHUM dissents and reserves the right to file a dissenting
opinion.
JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion.

SYLLABUS BY THE COURT

1. Pursuant to W. Va. Code § 54-1-3 (1923) (Repl. Vol. 2016), a company
may enter private land it desires to appropriate for the purpose of surveying said property
only when that company is invested with the power of eminent domain.
2. Under W. Va. Code § 54-1-1 (1931) (Repl. Vol. 2016), a company is
invested with the power of eminent domain only when: (1) it is organized under the laws of,
or is authorized to transact business in, West Virginia, and (2) the purpose for which said
companydesires to appropriate land is for a public use as authorized by W. Va. Code § 54-1
2 (2006) (Repl. Vol. 2016).
i

Davis, Justice:
In this appeal, petitioner and defendant below,MountainValleyPipeline, LLC
(“MVP”), challenges an order entered by the Circuit Court of Monroe County that granted
declaratory judgment to Bryan and Doris McCurdy (“the McCurdys”), respondents and
plaintiffs below, declaring that MVP has no right to enter their property to survey the area
as a potential location for a natural gas pipeline MVP plans to construct. The circuit court
based its decision on its finding that MVP’s pipeline is not being constructed for a public use
in West Virginia. In addition, the circuit court granted the McCurdys both a preliminary and
a permanent injunction prohibiting MVP from entering their property. After considering the
parties’ briefs and oral arguments, as well as the relevant law, we find no error. Therefore,
we affirm the rulings of the Circuit Court of Monroe County.
I.

FACTUAL AND PROCEDURAL HISTORY

MVP1
is in the process of seeking approval from the Federal Energy
Regulatory Commission (“FERC”) to construct and operate a nearly 300-mile natural gas
transmission pipeline from Wetzel County, West Virginia, to Pittsylvania County, Virginia.
1
The record indicates that MVP is a Delaware company registered with the
West Virginia Secretary of State to Conduct business in West Virginia. MVP’s principal
office is in Pittsburgh, Pennsylvania. According to the circuit court, MVP is a joint venture
between affiliates of EQT Corporation, NextEra Energy, Inc., WGL Holdings, Inc., Vega
Energy Partners, Ltd., EQT Midstream Partners, LP, and NextEra US Gas Assets, LLC.
1

MVP is a pipeline company that will not directly own the gas to be transported. However,
nearly ninety-five percent of the gas to be transported is owned by affiliates of MVP.2
The proposed pipeline, known as the Mountain Valley Pipeline (“MVP’s
pipeline”), will serve the primary purpose of moving gas from the producing regions of
northern West Virginia to markets in the Mid-Atlantic and Southeast regions of the United
States. MVP asserts that nearly all of the gas to be transported in MVP’s pipeline will be
produced in West Virginia, and further contends that MVP’s pipeline will provide needed
capacity for additional development of natural gas in West Virginia. MVP’s pipeline
currently has two main delivery points: The Transco pool in Pittsylvania County, Virginia,
which serves the entire east coast; and the Columbia WB pipeline, which, similar to MVP’s
pipeline, is a natural gas transportation pipeline. An agreement has been reached whereby
MVP’s pipeline will deliver gas to Roanoke Gas Company, a local distribution companythat
serves consumers in Virginia. However, no agreements have been reached that would
provide gas to any consumers in West Virginia. Although MVP avers that such agreements
are likely, there is no absolute right for local distribution companies or consumers to access
MVP’s pipeline, and there currently is no definitive evidence that any West Virginia
consumers or non-MVP affiliated natural gas producers would benefit fromMVP’s pipeline.
2
See note 1, supra, for a list of MVP affiliates.
2

On October 27, 2014, MVP submitted a request to FERC to initiate the
pre-filing process that will lead to an application for the issuance of a certificate of public
convenience and necessity for MVP’s pipeline. At the time of the entry of the circuit court
order herein appealed, MVP had not yet filed its formal application with FERC for a
certificate of public convenience and necessity; however, MVP avers that its application has
now been filed.
Respondents, plaintiffs below, Bryan and Doris McCurdy (“the McCurdys”),
own approximately 185 acres of land in Monroe County, West Virginia, along the proposed
route for MVP’s pipeline. They have lived on a portion of their property, which consists of
three tracts, since 1984. The proposed route for MVP’s pipeline will cross all three of the
McCurdys’ tracts and, according to the circuit court, would come near to their barn and their
residence.
In February 2015, the McCurdys were contacted by an MVP agent who
requested access to their property to conduct surveys that are necessary to complete MVP’s
application process for obtaining the certificate of public convenience and necessity. The
McCurdys declined to consent to the surveys. MVP then sent the McCurdys a letter, dated
February 24, 2015, providing notice of MVP’s intention to take legal action to obtain access
3

to the property pursuant to W. Va. Code § 54-1-3 (1923) (Repl. Vol. 2016)3
unless the
McCurdys acquiesced to the surveys by March 9, 2015.
Thereafter, on March 18, 2015, the McCurdys filed suit against MVP in the
Circuit Court of Monroe County seeking a declaratory judgment that MVP has no right to
enter their property for surveying purposes and further seeking both a preliminary and a
permanent injunction prohibiting MVP from entering their property. MVP removed the suit
to federal district court, but the federal court ultimately determined that it lacked subject
matter jurisdiction because the amount in controversy was less than $75,000. Accordingly,
the district court remanded the case to the Circuit Court of Monroe County for further
proceedings. Following an evidentiaryhearing, the circuit court, byorder entered on August
19, 2015, granted declaratory judgment to the McCurdys, and also granted them preliminary
and permanent injunctions. In doing so, the circuit court concluded that W. Va. Code § 54-1
3 does not authorize MVP to enter the McCurdys’ property because MVP is not vested with
the power of eminent domain insofar as its pipeline is not for a public use. The circuit court
based its conclusion on the fact that no West Virginia consumer would use any of the gas to
be transported in MVP’s pipeline. The circuit court further enjoined MVP from entering the
3
As will be discussed in more detail below, pursuant to W. Va. Code § 54-1-3
(1923) (Repl. Vol. 2016), “[a]ny incorporated company . . . invested with the power of
eminent domain under [chapter 54], . . . may enter upon lands for the purpose
of . . . surveying . . . .”
4

McCurdys’ property under color of Chapter 54 of the West Virginia Code without the
McCurdys’ express permission. This appeal followed.
II.
STANDARD OF REVIEW
The circuit court’s order herein appealed by MVP granted to the McCurdys
declaratory judgment as well as preliminary and permanent injunctive relief. With respect
to a declaratory judgment, this Court has held that “[a] circuit court’s entry of a declaratory
judgment is reviewed de novo.” Syl. pt. 3, Cox v. Amick, 195 W. Va. 608, 466 S.E.2d 459
(1995).
Our review of the circuit court’s grant of a preliminary injunction has three
parts:
“‘In reviewing the exceptions to the findings of fact and
conclusions of law supporting the granting of a temporary or
preliminaryinjunction,wewillapplyathree-prongeddeferential
standard of review. We review the final order granting the
temporaryinjunctionandtheultimatedispositionunderanabuse
of discretion standard, West v. National Mines Corp., 168
W. Va. 578, 590, 285 S.E.2d 670, 678 (1981), we review the
circuit court’s underlying factual findings under a clearly
erroneous standard, and we review questions of law de novo.’
Syllabus Point 4, Burgess v. Porterfield, 196 W. Va. 178, 469
S.E.2d 114 (1996).” Syl. pt. 1, State v. Imperial Marketing, 196
W. Va. 346, 472 S.E.2d 792 (1996).
5

Syl. pt. 1, Camden-Clark Mem’l Hosp. Corp. v. Turner, 212 W. Va. 752, 575 S.E.2d 362
(2002). As to the circuit court’s award of a permanent injunction, our review is for an abuse
of discretion:
Unless an absolute right to injunctive relief is conferred
by statute, the power to grant or refuse or to modify, continue,
or dissolve a temporary or a permanent injunction, whether
preventative or mandatory in character, ordinarily rests in the
sound discretion of the trial court, according to the facts and the
circumstances of the particular case; and its action in the
exercise of its discretion will not be disturbed on appeal in the
absence of a clear showing of an abuse of such discretion.
Syl. pt. 11, Stuart v. Lake Washington Realty Corp., 141 W. Va. 627, 92 S.E.2d 891 (1956).
Finally, we note that, to the extent our resolution of this appeal involves the
interpretation of statutes, our review is de novo: “Where the issue on an appeal from the
circuit court is clearly a question of law or involving an interpretation of a statute, we apply
a de novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459
S.E.2d 415 (1995). With due regard for the foregoing standards, we proceed to our analysis
of the issues raised on appeal.
III.

DISCUSSION

The circuit court’s decision in this case was based upon its determination that
MVP could only enter the McCurdys’ property for a public use pursuant to W. Va. Code
6

§ 54-1-3. On appeal MVP argues that a finding of public use is not required for a mere
survey, and, assuming arguendo that it is, MVP’s pipeline is for a public use. We address
these issues in turn.
A. Public Use Requirement
This case turns on the language of W. Va. Code § 54-1-3. The circuit court
reasoned that, because W. Va. Code § 54-1-3 authorizes only companies invested with the
power of eminent domain to enter property against the will of the property owner, it must
first be determined that MVP is invested with that power. Noting that W. Va. Code § 54-1-1
(1931) (Repl. Vol. 2016) invests the power of eminent domain in corporations such as MVP
only for public use, the circuit court found that MVP could enter the McCurdys’ land to
conduct a survey only if MVP’s pipeline is for a public use. MVP contends that surveying
does not require a finding of public use. We disagree.
Pursuant to W. Va. Code § 54-1-3,
[a]nyincorporatedcompanyorbodypolitic,investedwith
the power of eminent domain under this chapter, by its officers,
servants and agents may enter upon lands for the purpose of
examining the same, surveying and laying out the lands, ways
and easements which it desires to appropriate, provided no
injury be done to the owner or possessor of the land; but no
company or body politic, under the authority of this section,
shall throw open fences or inclosures on any land, or construct
its works through or upon the same, or in anywise injure the
property of the owner or possessor, without his consent, until it
7

shall have obtained the right so to do in the manner provided in
this chapter.
(Emphasis added). We find no ambiguity in the relevant language above. Thus, we are
obligated to apply its plain terms: “A statutory provision which is clear and unambiguous
and plainly expresses the legislative intent will not be interpreted by the courts but will be
given full force and effect.” Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488
(1951). See also Foster Found. v. Gainer, 228 W. Va. 99, 110, 717 S.E.2d 883, 894 (2011)
(“Statutes whose language is plain must be applied as written.”). Under the plain language
of W. Va. Code § 54-1-3, an “incorporated company” that is “invested with the power of
eminent domain under this chapter [Chapter 54], . . . may enter upon lands for the purpose
of examining the same, surveying and laying out the lands . . . .” (Emphasis added). Thus,
MVP may enter upon the McCurdys’ land to conduct a survey only if MVP is invested with
the power of eminent domain under Chapter 54 of the West Virginia Code.
Whether an incorporated company is invested with the power of eminent
domain is governed by W. Va. Code § 54-1-1 (1931) (Repl. Vol. 2016), which provides:
TheUnitedStatesof America,theStateof WestVirginia,
and every corporate body politic heretofore or hereafter created
by the Constitution or statutes of the State, and every
corporation heretofore or hereafter organized under the laws of,
or authorized to transact business in, the State, for any purpose
of internal improvement for which private property may be
taken or damaged for public use as authorized in section two
[§ 54-1-2] of this article, shall have the right of eminent domain,
and may exercise the same to the extent and in the manner
8

provided in this chapter, and subject to the restrictions and
limitations provided by law.
(Emphasis added). Pursuant to the plain language of W. Va. Code § 54-1-1, a corporation,
such as MVP, that is authorized to transact business in West Virginia4
“for any purpose of
internal improvement for which private property may be taken or damaged for public
use[,] . . . shall have the right of eminent domain . . . .”5
(Emphasis added). West Virginia
Code § 54-1-2 (2006) (Repl. Vol. 2016), in turn, provides in relevant part that “[t]he public
uses for which private property may be taken or damaged are as follows:. . . . For
constructing, maintaining and operating pipelines,. . . for transporting . . . natural gas . . . by
means of pipes. . . when for public use . . . .” (Emphasis added).
The foregoing statutes must be strictly construed. See State ex rel. Firestone
Tire & Rubber Co. v. Ritchie, 153 W. Va. 132, 138, 168 S.E.2d 287, 290 (1969) (“Eminent
domain statutes are strictly construed.” (citing State by State Road Comm’n v. Bouchelle,
137 W. Va. 572, 73 S.E.2d 432 (1952))). In accordance with the plain language of the
foregoing provisions, we now hold that, pursuant to W. Va. Code § 54-1-3 (1923) (Repl. Vol.
2016), a company may enter private land it desires to appropriate for the purpose of
4
See note 1, supra.
5
This Court previously has determined that “[a] pipe line for transporting
natural gas for the public use is an ‘internal improvement’ within the meaning of our
constitution.” Carnegie Nat. Gas Co. v. Swiger, 72 W. Va. 557, 567, 79 S.E. 3, 7 (1913)
(citing West Virginia Transp. Co. v. Volcanic Oil & Coal Co., 5 W. Va. 382, 388 (1872)).
9

surveying said property only when that company is invested with the power of eminent
domain. We additionally hold that, under W. Va. Code § 54-1-1 (1931) (Repl. Vol. 2016),
a companyis invested with the power of eminent domain onlywhen: (1) it is organized under
the laws of, or is authorized to transact business in, West Virginia; and (2) the purpose for
which said company desires to appropriate land is for a public use as authorized by W. Va.
Code § 54-1-2.
Having determined that a public use is required for MVP to enter and survey
the McCurdys’ land, we next examine whether MVP’s pipeline is for a public use.
B. Public Use
After conducting a hearing in thismatter,thecircuit court applied the fixed and
definite use test to conclude that MVP’s pipeline was not being constructed for a public use.
MVP argues that the circuit court wrongly applied the fixed and definite use test, which is
based on several older cases that no longer are controlling. The McCurdys assert that the
trial court did not err in concluding that MVP’s pipeline is not for public use under long
standing West Virginia precedent pertaining to public use.
We are cognizant that, at this point in time, MVP seeks only to survey the
McCurdyland. However, as demonstrated byour analysis of the relevant statutes above, and
10

the interrelationship of those statutes, the determination of public use is the same for
purposes of entering the land for a survey and for taking the land under eminent domain.
Thus, it is of no moment that the cases discussed below address public use in the context of
eminent domain.
We begin our analysis with a review of the fixed and definite use test. The test
first was articulated in 1883 in Syllabus points 6, 7, 8, and 9, of Varner v. Martin:
6. In such a case, where the title and control of the
propertyto be condemned is in private hands or in a corporation,
three qualifications are necessary to impose upon it such a
public use as will justify the taking of such private property
without the consent of the owner.
7. The use, which the public is to have of such property,
must be fixed and definite. The general public must have a right
to a certain definite use of a private property on terms and for
charges fixed by law; and the owner of the property must be
compelled by law to permit the general public to enjoy it. It will
not suffice, that the general prosperity of the community is
promoted by the taking of private property from the owner and
transferring its title and control to another, or to a corporation to
be used by such other or by such corporation as its private
property uncontrolled by law as to its use. Such supposed
indirect advantage to the community is not in contemplation of
law a public use.
8. This use of the property, which in such case the public
must have, must be a substantially beneficial use, which is
obviously needful for the public to have, and which it could not
do without except by suffering great loss or inconvenience.
9. And when the title of property is thus transferred by
condemnation to an individual or to a corporation, the necessity
11

for such condemnation must be obvious. It must obviously
appear from the location of the property proposed to be
condemned, or from the character of the use, to which it is to be
put, that the public could not, without great difficulty, obtain the
use of this land or of other land, which would answer the same
general purpose, unless it was condemned. And in such case, the
courts will judge of the necessity for confirming such
condemnation.
21 W. Va. 534 (1883). The Varner Court applied this test to find that construction of a road
for the sole purpose of providing a private landowner with access to his private property for
his own enjoyment thereof was not a public use.
The fixed and definite use test then was referred to in Pittsburg, W. & K.R. Co.
v. Benwood Iron Works, 31 W. Va. 710, 8 S.E. 453 (1888), wherein this Court found that a
railroad company’s construction of a switch track between a steel plant and the railroad’s
main line was not a public use. The Court explained that the railroad company’s
object is to condemn the land of the defendants for the purpose
of enabling it to laya siding, switch, branch-road or lateral work
from the main track to the Wheeling Steel-Works, a few
hundred feet distant, for the purpose, as stated in the original
petition, “of transporting freights to and from said steel-works
over the petitioner’s said railroad.” This clearly was for the
privateaccommodationof boththerailroadandsteel-works,and
to make the private business of both more profitable. This was
not for a public, but was for a private, use, and the taking of the
property under these circumstances would be the taking of
private property for private use, which is clearly prohibited.
Benwood, 31 W. Va. at 734, 8 S.E. at 467.
12

Subsequently, in Charleston Natural Gas Co. v. Lowe & Butler, Trustees, 52
W. Va. 662, 44 S.E. 410 (1901), this Court again cited the fixed and definite use test and
found that supplying the City of Charleston with natural gas for the use of the city and its
citizens was a public use. In this regard, the Lowe Court held:
Supplyinganincorporatedcityortownanditsinhabitants
with natural gas for the purposes of heating and illumination, by
a corporation organized under the general laws of the State, and
occupying the streets and alleys of such city or town for the
purpose by means of the location therein of its pipes,
connections, boxes, valves and other fixtures, under an
ordinance of the city or town, is a public use, for which such
company may take private property . . . upon which to locate its
pipe line.
Syl. pt. 1, in part, id. The Lowe Court further held that the gas company was “bound to
furnish gas to every inhabitant of such city or town who applies therefor and complies with
the regulations prescribed by the ordinances of the town, or fixed by contract between the
council and the company.” Syl. pt. 2, in part, id. In reaching its conclusions, however, the
Lowe Court discussed the difficulty of defining the concept of “public use”:
In Salt Co. v. Brown, 7 W. Va. 191 [(1874)], Judge Paul
said: “Whatthenconstitutesapublicuse,ascontradistinguished
from a private use? The most extended research will not likely
result in the discovery of any rule or set of rules or principles of
certain and uniform application, by which this question can be
determined in all cases. Eminent jurists and distinguished
writers upon public law, do not express concurrent or uniform
views upon this subject. It is a question from its very nature, of
great practical, perhaps of insuperable difficulty, to determine
the degree of necessity, or the extent of public use, which
justifies the exercise of this extraordinary power upon the part
13

of a state, by which the citizen, without his will, is deprived of
his property.[”]
What is a public use is incapable of exact definition.
Id. at 666-67, 44 S.E. at 411-12.
The fixed and definite use test was again applied in Hench v. Pritt, 62 W. Va.
270, 57 S.E. 808 (1907), wherein the Court concluded that a timbering company’s
construction of a private railwayfor use in getting its timber to market was for the company’s
private use and benefit, and was not for a public use:
The petition in case at bar clearly shows that the plaintiffs are
seeking to obtain this right of way in order to enable themselves
to transport their timber from their land to their mill, clearly
showing that it is for their private use and benefit, and in order
to give it the semblance of being for public use they show that
the other owners of timber along the route may be enabled also
to market their timber over the same road. It in no way appears
that the general public will derive any benefit from it other than
the development of private propertyand interests. Theproposed
road is not to be a common carrier nor one which will be of use
to the community at large, to be used by the public in general,
but simply a private way for the convenience of the projectors
and builders thereof for the shipment of their logs and timber to
market.
62 W. Va. at 276, 57 S.E. at 810.
Finally, in Carnegie Natural Gas Co. v. Swiger, 72 W. Va. 557, 79 S.E. 3
(1913), the Court was asked, inter alia, whether a proposed pipeline was for a public use.
14

The Swiger Court considered earlier cases and summarized the fixed and definite use test
thusly:
(1) That the use which the public is to have of the propertytaken
must be fixed and definite, and on terms and charges fixed by
law; (2) that such public use must be a substantial beneficial
one, obviously needful for the public, which it cannot do
without,exceptbysufferinggreat loss or inconvenience; (3)that
the necessity for condemnation must be apparent and that the
public need must be an imperious one.
Id. at 570, 79 S.E. at 9. The Swiger Court found the fixed and definite use test was met
because Carnegie Natural Gas Co. was a public service corporation that had a dutyto provide
gas to individuals “along the entire line traversed;” the public would substantially benefit
from the ability to use natural gas for light, heat, and power; and the rights of way sought
were necessary to move the natural gas from the “source of supply to the places of
consumption.” Id. at 571-72, 79 S.E. at 9.
Observingthatthemostrecentapplicationof thefixedanddefiniteusetestwas
in 1913, MVP contends that this Court’s recent decisions analyzing public use do not follow
the fixed and definite use test. See W. Va. Dep’t of Transp. v. Contractor Enters., Inc., 223
W. Va. 98, 672 S.E.2d 234 (2008) (determining construction of public highway and
associated material storage waste site was public use); Retail Designs, Inc. v. W. Va. Div. of
Hwys., 213 W. Va. 494, 583 S.E.2d 449 (2003) (finding public use in keeping access road
between state highway and real property used for commercial, industrial, or mercantile
15

purpose); Charleston Urban Renewal Auth. v. Courtland Co., 203 W. Va. 528, 509 S.E.2d
569 (1998) (involving city’s exercise of eminent domain to acquire land owned by private
company located in downtown area). In general, we find these cases are not instructive to
the instant matter because they all involve condemnation by a government entity and not a
private company such as MVP. However, one of the cases, Charleston Urban Renewal
Authority v. Courtland Co., does warrant discussion.
InCharlestonUrbanRenewalAuthorityv. CourtlandCo.,thisCourt,referring
to earlier cases that applied the fixed and definite use test, observed that “[t]here was a time
when this Court’s cases took a more narrow view of what could constitute a ‘public
use . . . .’” Id. at 536, 509 S.E.2d at 577. The Court then remarked that,
[u]nder these narrow definitions of a “public use,” the
taking of land by an urban redevelopment authority like CURA
[Charleston Urban Renewal Authority], as part of creating a
“unified business district”– say, for sale to a hotel
builder–would not be a “public use.”
However, this narrow view of what may constitute a
“public use” has broadened over time.
Id. Although Courtland signals this Court’s recognition of a broadening of the definition of
“public use,” it is important to note that, in West Virginia, this broadening has occurred in
cases involving government action to combat certain social plights, especially where the
Legislature has determined that government action is necessary. This fact is evident from
the Courtland Court’s observation that
16

[t]his broadening [of the definition of “public use”] was
recognized in State ex rel. City of Charleston v. Coghill, 156
W. Va. 877, 880-81, 207 S.E.2d 113, 116 (1973), where this
Court stated:
Prior decisions of this Court have
continuously enlarged the sphere of permissible
government action in what was formerly
considered exclusively the private sector. In
Chapman v. Housing Authority, 121 W. Va. 319,
3 S.E.2d 502 (1939) this Court held valid the
West Virginia Housing Act which had as its
primary purpose slum clearance. In State ex rel.
West Virginia Housing Development Fund v.
Copenhaver, supra, [153 W. Va. 636, 171 S.E.2d
545(1969)]thisCourtheldconstitutionalChapter
31, Article 18, Section 1 et seq. of the Code of
West Virginia, 1931, as amended, which provided
for the West Virginia Housing Development
Fund. The Fund had as its purpose an increase in
the amount of housing available to West Virginia
residents. Similarly in County Court v. Demus,
supra, [148 W. Va. 398, 135 S.E.2d 352 (1964)]
this Court reviewed the Industrial Development
Bond Act, Chapter 13, Article 2C, Section 1 et
seq. of the Code of West Virginia, 1931, as
amended, which permitted a county or
municipality to acquire property for the purpose
of leasing it for industrial purposes, and this Court
again found the legislation to be without
constitutional infirmities. These cases clearly
establish the broad sphere of permissible
governmental activity in areas where the
Legislature determines that government action is
a necessary supplement to private enterprise to
alleviate social problems.
Courtland, 203 W. Va. at 536, 509 S.E.2d at 577 (emphasis added). See also Kelo v. City
of New London, 545 U.S. 469, 477, 125 S. Ct. 2655, 2661, 162 L. Ed. 2d 439 (2005)
17

(applying a broader standard for public use in a case where the Supreme Court “granted
certiorari to determine whether a city’s decision to take property for the purpose of economic
development satisfies the ‘public use’ requirement of the Fifth Amendment” of the United
States Constitution” (emphasis added));6
Daniels v. Area Plan Comm’n of Allen Cty., 306
F.3d 445, 460 (7th Cir. 2002) (observing that “[e]ven though the Supreme Court has required
the existence of a public use to justify a taking, the burden on the state is remarkably light,”
but nevertheless finding no public use where a local plan commission sought to vacate a
6
Even though the Kelo Court applied a broad meaning to the term “public use”
underthefactsthereinpresented, the Court nevertheless expresslyrecognizedthatevenacity
could not take property for conferring a private benefit on a private party:
[T]he Citywould no doubt be forbidden fromtaking petitioners’
land for the purpose of conferring a private benefit on a
particular private party. See [Hawaii Hous. Auth. v. Midkiff, 467
U.S. 229, 245, 104 S. Ct. 2321, 2331, 81 L. Ed. 2d 186 (1984)]
(“A purelyprivate taking could not withstand the scrutiny of the
public use requirement; it would serve no legitimate purpose of
government and would thus be void”); Missouri Pacific R. Co.
v. Nebraska, 164 U.S. 403, [17 S. Ct. 130, 41 L. Ed. 489]
(1896). Nor would the City be allowed to take property under
the mere pretext of a public purpose, when its actual purpose
was to bestow a private benefit. The takings before us,
however, would be executed pursuant to a “carefully
considered” development plan. [268 Conn. 1, 54, 843 A.2d 500,
536 (2004)]. The trial judge and all the members of the
Supreme Court of Connecticut agreed that there was no
evidence of an illegitimate purpose in this case. Therefore, as
was true of the statute challenged in Midkiff, 467 U.S., at 245,
[104 S. Ct. at 2331], the City’s development plan was not
adopted“tobenefitaparticularclassof identifiableindividuals.”
Kelo v. City of New London, Conn., 545 U.S. 469, 477-78, 125 S. Ct. 2655, 2661-62, 162
L. Ed. 2d 439 (2005) (footnotes omitted).
18

covenant and to redevelop deteriorated residential property as commercial property without
express legislative authority (emphasis added)). Indeed, the Courtland Court clarified that
[t]his opinion addresses only the degree of deference to
be given to determinations by public bodies like CURA in their
exercise of eminent domain. We do not address the exercise of
eminent domain by private entities such as utilities that exercise
the power of eminent domain pursuant to a legislative grant; nor
do we hold that such private entities are to be afforded the same
degree of deference in their exercise of eminent domain that is
afforded to eminent domain actions by public bodies.
Courtland, 203 W. Va. at 537 n.6, 509 S.E.2d at 578 n.6 (emphasis added). Accordingly,
Courtland does not counsel a broadening of the meaning of “public use” in the case sub
judice.
MVP additionally argues that this Court has observed that condemnations of
rights-of-way to provide energy have consistently been considered by this Court as serving
a public use. See Handley v. Cook, 162 W. Va. 629, 632, 252 S.E.2d 147, 148 (1979). MVP
fails to recognize, however, that implicit in the foregoing statement is that the energyis being
provided in West Virginia, as demonstrated by the cases cited by Handley to support the
19

statement, which involve companies providing energy in West Virginia.7
See Handley, 162
W. Va. at 632 n.3, 252 S.E.2d at 148 n.3.
Nevertheless, we note that, in finding that a power company supplying power
to a single customer, a West Virginia coal mining company, was a public use, the Handley
Court did not expressly apply the fixed and definite use test. The Handley Court reasoned
that,
[t]he Legislature in order to make power available has
conferred upon electric power companies the right of eminent
domain, and has thereby necessarily imposed upon them, as
public service corporations, the right and duty of performing a
public service. The condemner, Appalachian Power Company,
must supply electrical service to those who desire it and are able
to pay for it; the company cannot arbitrarily discontinue service
or increase the rates charged; and, the company’s provision of
service is dependent upon the will of the Legislature and, in
turn, the Public Service Commission. Relators [land owners]
7
SeeShepherdstownLight &Water Co. v. Lucas, 107 W. Va. 498, 148 S.E. 847
(1929) (providing electricityto West Virginia consumers in Shepherdstown, West Virginia);
Brooke Elec. Co. v. Beall, 96 W. Va. 637, 123 S.E. 587 (1924) (power company organized
as a public utilitycorporation and operatingas a common carrier); West Virginia &Maryland
Power Co. v. Racoon Valley Coal Co., 93 W. Va. 505, 117 S.E. 891 (1923) (power company
providing electricityto West Virginia consumers along its lines); Pittsburgh &West Virginia
Gas Co. v. Cutright, 83 W. Va. 42, 97 S.E. 686 (1918) (public service corporation
transporting and serving public with natural gas); Carnegie Nat. Gas Co. v. Swiger, 72
W. Va. 557, 79 S.E. 3 (1913) (pipeline company/public service corporation providing public
with natural gas); Pittsburgh Hydro-Elec. Co. v. Liston, 70 W. Va. 83, 73 S.E. 86 (1911)
(providing electricity for public uses in West Virginia); Charleston Nat. Gas Co. v. Lowe &
Butler, Trs., 52 W. Va. 662, 44 S.E. 410 (1901) (supplying Charleston, West Virginia, and
its inhabitants with natural gas). Two additional cases cited in Handley did not find a public
use. Instead, they remanded for a new trial. See Brooke Elec. Co. v. Paull, 96 W. Va. 645,
123 S.E. 590 (1924); Brooke Elec. Co. v. Beall, 96 W. Va. 637, 123 S.E. 587 (1924).
20

contend that service to one customer does not serve a public
need; however, it is the nature of the use rather than the number
of persons served which is the paramount consideration.
Waynesburg Southern R.R. Co. v. Lemley, 154 W. Va. 728, 178
S.E.2d 833 (1971). Furthermore we find no distinction between
residential and commercial users; seeking to separate the two as
to which is deserving of “public use” treatment in the provision
of utility services is unavailing to the relators. Appalachian
Power Company makes available electrical power to all,
individuals and businesses alike, and would be hard pressed to
deny high voltage power to anyone along the proposed line who
needed it. Undoubtedly, relators themselves are power users
and would be horrified if their power service had not been
forthcoming due to a recalcitrant adjacent landowner.
162 W. Va. at 632-33, 252 S.E.2d at 149 (second emphasis added). While the foregoing
quote indicates that the elements of the fixed and definite use test appear to be met, the Court
did not expressly apply the test. Additionally, the Foregoing Court, in dicta, added to the
public use analysis by including consideration of the “nature of the use rather than the
number of persons served.” 162 W. Va. at 633, 252 S.E.2d at 149. Still, under Foregoing,
at least one West Virginia entity must derive a significant benefit for a taking to be for a
public use.
While the Courtland and Handley cases may call into question the fixed and
definite use test, the continued viability of that test is a question we need not decide today.
What is patently clear is that private property may not be taken for a private use. See Gomez
v. Kanawha Cty. Comm’n, 237 W. Va. 451, ___, 787 S.E.2d 904, 912 (2016) (“Private
property can constitutionally be taken byeminent domain onlyfor a ‘public’ use.”); Handley
21

v. Cook, 162 W. Va. 629, 632, 252 S.E.2d 147, 148 (observing that “private property cannot
be taken for private use”); Syl. pt. 1, Hench v. Pritt, 62 W. Va. 270, 57 S.E. 808 (“Under our
Constitution private property cannot be taken for private use, either with or without
compensation.”); Pittsburg, W. & K.R. Co. v. Benwood Iron Works, 31 W. Va. at 734, 8 S.E.
at 467 (“[T]he taking of private property for private use. . . is clearly prohibited.”); Syl. pt.
1, Varner v. Martin, 21 W. Va. 534 (“Under our Constitution private property can not be
taken with or without compensation for private use.”). See also W. Va. Const. art. III, § 9
(establishing how private property may be taken); Kelo v. City of New London, 545 U.S. at
477-78, 125 S. Ct. at 2661-62, 162 L. Ed. 2d 439 (“‘A purely private taking could not
withstand the scrutiny of the public use requirement; it would serve no legitimate purpose
of government and would thus be void.’” (quoting Hawaii Hous. Auth. v. Midkiff, 467 U.S.
229, 245, 104 S. Ct. 2321, 2331, 81 L. Ed. 2d 186)).
MVP has been unable to identify even a single West Virginia consumer, or a
West Virginia natural gas producer who is not affiliated with MVP, who will derive a benefit
from MVP’s pipeline. As noted above, the circuit court expressly found that MVP “is not
regulated as a utility by any West Virginia agency.”8
MVP is a private company seeking to
8
Because MVP is a private company, its efforts to use eminent domain are
subject to greater scrutiny than that of a government entity. See, e.g., Texas Rice Land
Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, 363 S.W.3d 192, 197 (Tex. 2012)
(“While [statutory] provisions plainly give private pipeline companies the power of eminent
domain, that authority is subject to special scrutiny by the courts.”). Cf. 2A Nichols on
(continued...)
22

survey property for the ultimate purpose of exercising the right of eminent domain. Mr.
Shawn Posy (“Mr. Posy”), an employee of EQT who was MVP’s sole witness before the
circuit court, confirmed in his testimony that “[t]he primary purpose of [MVP’s pipeline] is
to deliver gas to the Transco pool.”9
In fact, the only benefit to West Virginia that has been
asserted byMVP in this appeal is the benefit to producers and shippers of the natural gas that
8
(...continued)
Eminent Domain, Ch. 7, § 7.05[2][a] (3d ed. 2016) (commenting that the use of eminent
domain by corporations labeled “public service corporations” is “restricted and subject to
more scrutiny than similar use of eminent domain by a governmental entity”). Indeed, the
Varner Court cautioned that,
unless carefully guarded there is great danger, [of] . . . private
persons or private corporations, claiming . . . to condemn lands
nominally for the public use, but really for their own private use
in violation of the rights of private property, as designed to be
protected bythe Constitution. The courts have therefore in such
cases thrown around the owners of private property safeguards,
which we should be careful not to permit to be broken down.
21 W. Va at 555-56. See also Syl. pt. 2, Gauley & S.R. Co. v. Vencill, 73 W. Va. 650, 80 S.E.
1103 (1914) (“Before a corporation, though thus chartered and organized, can lawfully
condemn private property, it must appear, when denied, that the use is public, and not merely
private.”); Pittsburg, W. & K.R. Co. v. Benwood Iron Works, 31 W. Va. 710, 735, 8 S.E. 453,
467 (“The mere declaration in a petition, that the property is to be appropriated to public use
does not make it so; and evidence, that the public will have a right to use it, amounts to
nothing in the face of the fact, that the only incentive to ask for the condemnation was a
private gain, and it was apparent, that the general public had no interest in it. We would do
nothing to hinder the development of the State nor to cripple railroad companies in assisting
such development, but at the same time we must protect the property-rights of the citizens.
Whatever corporations may be entitled under a proper construction of the law they will
receive; but they must not be permitted to take private property for private use.”).
9
The Transco pool is located in Pittsylvania County, Virginia, and serves the
east coast of the United States.
23

is located in West Virginia. Significantly, however, the owners of that natural gas are
affiliates of MVP. On this point, Mr. Posy testified as follows:
Q. And there’s no question at all, is there, that the bulk of
this gas is coming from under the land of many, many West
Virginians in north-central, West Virginia?
A. That’s correct.
(Emphasis added). Although the gas is coming from “under the land” of West Virginians,
Mr. Posy’s testimony was clear that the gas is owned by affiliates of MVP:
Q. You testified that MVP doesn’t directly hold title to any
gas in the pipeline. Do any of the principals in MVP own the
gas that’ll be shipped?
A. I believe the parent company does.
Q. Parent company does. Are there any other affiliates that
own the gas?
A. Well, when I say parent, I meant affiliates.
MVP is a joint venture between affiliates of EQT Corporation, NextEra Energy, Inc., WGL
Holdings, Inc., Vega Energy Partners, Ltd., EQT Midstream Partners, LP, and NextEra US
Gas Assets, LLC. Moreover, the evidence in this case further demonstrated that up to ninety-
five percent of the gas that will be shipped through MVP’s pipeline will be owned and
produced by MVP’s affiliated companies:
Q. What percentage of the gas that’s going to run through
the MVP pipeline do you think is coming from affiliates or
parents or people with relationships to MVP?
A. With my understanding, you know, 85 to 95 percent.
24

There simply is nothing in the record presented in this case to demonstrate
anything other than speculative public use resulting from MVP’s pipeline. MVP contends
that there is a possibility and potential that some of the gas would reach West Virginia
consumers; however, MVP has not entered any agreements for the same. On this topic, Mr.
Posy testified:
Q. What firm commitments do you have from [Local
Distribution Companies (LDCs)] in West Virginia?
A. I personally am not aware of firm commitments,
other than - a firm commitment is more of a shipper firm
commitment, not an end-use commitment.
Q. Understood. Nonetheless, a tap is going to have
to go on your intrastructure; is that correct?
A. Yes.
Q. What taps for LDCs have you committed to in
West Virginia?
A. Specifically at this point, I am aware of none.
Similarly, although local producers and shippers of natural gas may submit “tap requests” to
MVP in order to ship their natural gas using MVP’s pipeline, MVP retains the right to refuse
such requests in accordance with federal law. The record reflects no firm agreements to ship
natural gas through MVP’s pipeline for anyone other than MVP affiliated companies. Thus,
this case represents exactly the type of private taking for private use that is prohibited.
25

While there is evidence that consumers outside of West Virginia will benefit
from receiving natural gas via MVP’s pipeline, the circuit court correctlyfound that the State
of West Virginia may exercise the right of eminent domain or authorize the exercise of that
right only for the use and benefit of West Virginians:
Thesovereign’spowerof eminentdomain,whetherexercisedby
it or delegated to another, is limited to the sphere of its control
and within the jurisdiction of the sovereign. A state’s power
exists only within its territorial limits for the use and benefit of
the people within the state. Thus, propertyin one state cannot be
condemned for the sole purpose of serving a public use in
another state.
Clark v. Gulf Power Co., 198 So. 2d 368, 371 (Fla. Dist. Ct. App. 1967). See also Adams
v. Greenwich Water Co., 138 Conn. 205, 214, 83 A.2d 177, 182 (1951) (observing that “no
state is permitted to exercise or authorize the exercise of the power of eminent domain except
for a public use within its own borders” (and collecting cases)); Square Butte Elec. Co-op.
v. Hilken, 244 N.W.2d 519, 525 (N.D. 1976) (recognizing that “although other states may
also be benefited, the public in the state which authorizes the taking must derive a substantial
and direct benefit . . ., something greater than an indirect advantage”).10
In this vein, the
10
MVP may nevertheless gain authorization to enter upon and survey the
McCurdys’ land from FERC. The federal court that considered this very case on removal,
but ultimately remanded, found that
[the McCurdys] represented in their motion to reconsider, and
[MVP] acknowledged at oral argument on this matter, that the
terms of a conditional FERC Certificate would grant [MVP] the
right to enter and survey [the McCurdys’] property.
Furthermore, [MVP] represented that it plans to use West
(continued...)
26

Court of Appeals of Kentucky recently concluded that a pipeline was not in public service
to Kentuckians where no gas would reach Kentuckyconsumers. See Bluegrass Pipeline Co.,
LLC v. Kentuckians United to Restrain Eminent Domain, Inc., 478 S.W.3d 386, 392 (Ky. Ct.
App. 2015) (concluding that “the NGLs [(natural gas liquids)] in Bluegrass’s pipeline are
being transported to a facility in the Gulf of Mexico. If these NGLs are not reaching
Kentucky consumers, then Bluegrass and its pipeline cannot be said to be in the public
service of Kentucky”).
Based upon the analysis set out above, we find no error in the circuit court’s
conclusion that MVP’s pipeline is not for a public use.
10
(...continued)
Virginia eminent domain law to gain access to property within
the pipeline’s proposed corridor, but ultimately plans to use
federal eminent domain law to condemn property and build the
pipeline. As a result, a potential ruling in [the McCurdys’] favor
would not doom the pipeline. [The McCurdys] are entitled to
seek the relief which state law affords them, even if that relief
is rendered moot by a conditional FERC Certificate.
McCurdy v. Mountain Valley Pipeline, LLC, No. CIV. A. 1:15-03833, 2015 WL 4497407,
at *7 (S.D.W. Va. July 23, 2015).
27

IV.

CONCLUSION

Because the circuit court correctly concluded that MVP could enter the
McCurdys’ land to survey the same only if the MVP pipeline was for a public use, and
because we find no error in the circuit court’s conclusion that the MVP pipeline is not being
constructed for a public use in West Virginia, we affirm the August 19, 2015, order of the
Circuit Court of Monroe County.
Affirmed.
28

WV Supreme Court Decision Disallowing Survey Access for Mountain Valley Pipeline

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