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In split verdict, Horse Shoe Farm loses 10 trees in gas line easement (2)

John Turchin points to trees that Dominion Energy wants to remove at Horseshoe Farm. Jagger, a Pyredoodle, patrols in the background.

By Bill Moss, Published: February 11, 2023

It may have been the first case in history to reach Henderson County Civil Superior Court in which a tree was on trial for its life. Or, to be more specific, 17 trees.

In the end 10 trees lost and seven won a reprieve, giving Dominion Energy North Carolina the right to cut trees in a 50-foot right-of-way over its pipeline at Horse Shoe Farm, which has been developed into a resort for corporate retreats, family reunions and other guests.

After a three-day trial, the case wrapped up Friday morning. The jury of six men and six women needed just 55 minutes to reach a verdict that preserved the gas company’s right to chainsaw trees in the right of way but blocking its demand to continue “side trimming” trees outside the right-of-way whose branches overhang the corridor. That last dispute arose from Dominion’s more recent practice of using aerial patrols to monitor the line for illegal construction, third party excavation or obstructions that may threaten the gas line or block access to it.

The case goes back to October 2020, when gas line workers first approached Horse Shoe Farm owner John Turchin about cutting trees in the right of way. At first he agreed and three were chainsawed — becoming known in the trial as “stumps 1, 2 and 3.” Seventeen more languished on death row while a lawsuit wound its way to trial. Dominion sued Turchin for the right to clearcut the right of way. Turchin countersued.

“When a utility company shows up at your property and says we have to remove trees, and they look like they’re an authoritative figure, most people are just gonna let them do that and that’s understandable,” Turchin’s attorney, Tyler Moffatt of Boone, told the jury in closing arguments. “But my client at first was open to that concept and was going to allow them to cut trees. But as they got into the details of what they were going to be cutting it became evident that this wasn’t necessarily just about these initial safety issues that were communicated. And my client, once he had a chance to think about this, decided to determine what his actual rights were.”

Dominion: Trees could uproot pipeline

Dominion called an employee who testified about the danger trees pose in the gas line right of way, then called an expert witness who described in detail federal regulations that require natural gas companies to keep pipelines safe and the industry standards for doing so. The plaintiff’s case focused repeatedly on how a tree could get uprooted in a storm and rupture the pipeline.

“In a storm, the root ball comes up with the tree and that root ball will pull up the pipeline and could very easily cause a leak in that pipeline, maybe a catastrophic leak,” said the expert, Bruce Paskett, a pipeline engineer for 40 years who also served as an executive with the American Gas Association and is an expert on design, operation, maintenance and safety of gas pipelines. He acknowledged he wasn’t aware of a blown-over tree uprooting a pipeline. “It’s because operators just don’t allow it. They eliminate that threat before it becomes a real threat. They do not allow a pipeline right of way to have trees on it.”

Dominion’s attorney, Daniel Peterson, and the gas company’s witnesses emphasized, too, that a gas line rupture could have consequences that reached far beyond beyond Horse Shoe Farm.

“If there’s a serious leak on that pipeline, the appropriate response would be to shut down the pipeline,” Paskett said. “So all the downstream customers would be shut down and without gas until the pipeline is repaired and put back in service. Long story short, downstream customers could be without natural gas for days to potentially weeks.”

As for trimming trees outside the right of way, Paskett testified that aerial surveillance is one way to efficiently monitor the corridor. “The industry standard is to eliminate that obstruction so it has a clear unobstructed view of that pipeline so they can see anything that’s occurring,” he said, though on cross examination he acknowledged that federal regulations don’t require aerial surveillance.

A threat to serenity

Turchin testified that he and his son and farm manager Jordan, have developed Horse Shoe Farm into a retreat with a spa, pool, farm-to-table restaurant, yoga studio and more that sells its serenity.

“They were destroying all the trees that gives the farm its seclusion,” Turchin said of the gas company. “They clearcut through the neighbor’s property and clearcut through the countryside.”

After he first OK’d Dominion’s plans to cut the right-of-way, he said, he saw that crews “left a mess,” refused to stump grind after removing trees and failed to mark doomed trees as the gas company employees had promised. He ordered the crew off the property; Dominion threatened to sue him and ultimately did file the lawsuit.

Peterson told the jury in closing arguments that a 1963 easement that rides with the land clearly establishes Dominion’s right to clearcut the right of way. The agreement gives Dominion “all the rights and benefits” to use the land “without limitation,” he said, adding: “Here’s the crucial part, ‘and the right from time to time to cut all trees, undergrowth and other obstructions that may injure, endanger or interfere with the construction, operation, maintenance and repair of said pipeline.’”

Arguing for the resort, Moffatt said the agreement requires Dominion to show what these conditions are “that may injure, endanger or interfere with” the pipeline.

“In other words, it is not an unequivocal right for them to come in,” he said. “There is some requirement that they show something that may actually endanger or interfere with their operation with the pipeline. It is not a unilateral.” Dominion can patrol the line, he said, “by other means that don’t require side-trimming the trees.”

When the jury returned, it presented a verdict sheet that answered simply yes or no as to whether Dominion had the right to chainsaw each of the 17 trees, one by one. Turchin’s Japanese maple, which is near an above ground service line called a farm tap, was saved, as were trees outside the right-of-way.

Peterson, Dominion’s Charlotte-based attorney, said afterwards he could not comment on the outcome.

A few days before his case went to trial, Turchin showed a reporter around the 85-acre Horse Shoe Farm, the spa, the new pool, an unobstructed view of the Mount Pisgah, the pasture and the Silo Cookhouse, which serves single-seating three-course dinners Wednesday through Saturday.

“It would be a major blemish, a scar here if they were to cut all these trees down — for my business, enjoyment, the canopy, the hawk’s nest in here, the white squirrels, all of that,” he said as he swept an arm toward the right-of-way. “What they want to do is just come in here and cut any overhang so they can now fly over with an airplane to save them money.

“They have a right to come through here,” he conceded. “But in the meantime, unless they can prove this tree is damaging their pipeline, leave it alone. So I’m fighting a bigger fight. It’s not John Turchin against the gas company. It’s really the gas company against trees.”

Although he now is likely to lose 10 trees in the gas pipeline’s right-of-way, those outside of it were saved. Outside the courtroom on Friday, however, he took little solace in the verdict.

“I’m very disappointed in the outcome,” he said. “The easement was put in there so they can replace a gas line when necessary” along a 50-foot corridor “running through the countryside, 11,000 miles (in North Carolina). You’re telling me they’re going through 11,000 miles cutting 50 feet? Bottom line, I think we’ve been treated unfairly.”