REPORT AND ORDER
Syllabus: The
Commission concludes that Summit Natural Gas of Missouri, Inc. has not violated
its tariff, any statute, or any rule or order of the Commission.
Background
Michael Stark filed a complaint with the Missouri Public Service
Commission alleging that Summit Natural Gas of Missouri, Inc., installed a gas
line on his property without authorization. For his relief, Mr. Stark sought compensation
for the company’s trespass upon, and damage to, his property. The company moved the Commission to dismiss
the complaint because the Commission is without jurisdiction to award damages. The Staff of the Commission recommended that
the Commission dismiss the complaint for the same reason. Mr. Stark then requested that the Commission
revoke or rescind the company’s certificate of convenience and necessity. Because the Commission is unable to revoke the
company’s certificate, the company again moved to dismiss the complaint and
Staff agrees.
In its Order Denying
Motions to Dismiss and Order Directing Filing, issued in this case, the
Commission points out that it does not have the authority to award monetary
relief or revoke the company’s certificate. However, to ensure that no statute, tariff,
Commission rule or order was violated, the Commission proceeded with this case
to hearing.
Findings
of Fact
Stipulated Facts
1.
Summit Natural Gas of Missouri,
Inc. is engaged in the business of selling retail natural gas service in the
state of Missouri and is a public utility under the jurisdiction of the
Missouri Public Service Commission.
2.
Michael Stark is a resident of
Camden County, Missouri, residing at 44 Sycamore Road, Camdenton,
Missouri, and is not a customer of Summit.
3.
On July 17, 2012, the Commission
granted Summit a certificate of convenience and necessity (“certificate”) authorizing
it to construct, install, own, operate, control, manage and maintain a
distribution system to provide gas service in Benton, Morgan, Camden and Miller
counties in Missouri, as a service area (Lake Ozark Division).
4.
Summit relied on maps from the
Camden County geographic information systems (GIS) website to create its map
book for the Lake Ozark Division.
5.
Maps on the Camden County GIS
website give approximate locations of parcels of property for real estate tax
purposes, but the locations on these maps have not been located by a surveyor.
6.
Maps printed from this site have
a disclaimer that they may or may not be accurate, current, or reliable.
7.
Camden County does not have a
consolidated map depicting county property or county rights-of-ways prepared by
a surveyor.
8.
On June 18, 2013, Priority
Communications (‘Priority”), contractors working for Summit, entered upon a
portion of Mr. Stark’s property and installed a section of gas piping
approximately 1,000 feet in length, along a road located in Camden County,
which was intended to be a part of Summit’s initial build-out of the Lake Ozark
Division under its CCN.
9.
During the morning of June 18,
2013, while the gas piping was being installed, Mr. Stark spoke with Priority’s
employees and notified them that they were installing the gas piping on his
private property and that they had no authority to do so.
10.
When Priority’s employees left
Mr. Stark’s property on June 18, 2013, the gas piping had been laid,
backfilled, and some length of gas piping was intentionally left unburied at
each end for connecting the section of piping to other sections on a later
date.
11.
No work was performed by or on
behalf of Summit on Mr. Stark’s property after June 18, 2013.
12.
On June 19, 2013, Mr. Stark met
with Mr. Eric Graves, Summit’s State Construction Manager, and stated that the
property on which the gas piping was being installed belonged to him.
13.
Summit had a title search
conducted and determined that the piping was not laid on a public right-of-way
but was laid on Mr. Stark’s private property.
14.
The gas piping on Mr. Stark’s
property does not now, nor has it ever had gas flowing through it.
15.
On September 17, 2013, John
Kottwitz and Rick Fennel of the Safety/Engineering Section of the Commission
met with Mr. Stark and observed that portions of the backfill washed out where
the piping was being installed.
Additional Facts Found from
the Hearing
16.
The maps used by Summit are not
construction-grade maps.
17.
Utilities could do a title
search for every foot of pipe that they install,
but it is not feasible for Summit to perform a title search before laying pipe
along a public right-of-way.
18.
Although the purpose of the maps
is for assessment purposes,
they may be used to determine who owns a particular piece of property.
19.
Neither the contractor nor
Summit saw any purple markings, which indicate private property, when accessing
Mr. Stark’s road.
20.
When Mr. Stark approached the
contractor, informing them that the road was his, Priority had trenched 900
feet.
21.
Approximately 150 feet was left
to trench, in order to finish the job.
22.
Summit instructed the contractor
to finish the job.
23.
Summit believed Mr. Stark’s road
to be a county road and a better road than Antique Road (a public road) to use
for laying pipe.
24.
The public right-of-way (Antique
Road) and Mr. Stark’s road are about 20 feet apart and it is feasible for two
public rights-of-way to run parallel that close to one another.
25.
Summit did not use maps to
establish boundaries, because it mistakenly believed the road on which pipe was
to be laid was a public right-of-way.
Conclusions
of Law
Jurisdiction
As the Commission sets out in its Order Denying Motions to Dismiss and Directing Filing, Missouri law
allows any person to file a complaint with the Commission setting forth any act
of a public utility in violation of any provision of law.
The Public Service Commission is a body of limited jurisdiction and has only
such powers as are expressly conferred upon it by statute and powers reasonably
incidental thereto. The Commission cannot award monetary relief
to a complainant.
However, the law does not require the
Commission to dismiss a complaint because of the absence of direct damage to
the complainant. The Commission therefore concludes that its
inability to award the damages that Mr. Stark seeks does not necessitate
dismissal of this complaint.
With regard to Mr. Stark’s request for revocation of the
company’s certificate of convenience and necessity, the Commission has only
that power granted to it by the Legislature.
There is no such explicit grant of
legislative power for the Commission to order such relief in this case. Further, the circumstances surrounding this
case do not warrant revocation.
Although the Commission cannot grant the requested relief, the
Commission has the power to investigate to determine whether there has been a
violation of any provision of law within the Commission’s jurisdiction, or
order of the Commission.
Burden of
Proof
In cases where a complainant alleges that a regulated utility is
violating the law, its own tariff, or it is otherwise engaging in unjust or
unreasonable action, the burden of proof rests with the complainant.
Discussion
During these proceedings, there has been no indication that the
company has violated any statute within the Commission’s jurisdiction or order
of the Commission. Whether or not the
company violated any provision of its tariff was, however, considered by Staff
and the company.
Staff argues that the tariff does not apply because Mr. Stark is
not a customer. That argument stands on
an analysis of sheet 58 of the company’s tariff. That tariff sheet defines “customer extensions”
“[a]s any branch from, or continuation of, existing facilities to the point of
delivery to the customer. . . . including all mains, service pipe,
pressure regulators and meters.” Staff
argues that, because Mr. Stark is not a customer, the pipe being laid by the
company was not a “customer extension” and that the tariff sheets concerning
rights-of-way are not applicable. Summit
argues that obtaining rights-of-way is within its discretion.
Mr. Stark argues that the company may have mistakenly entered
upon his property. However, after he informed the company the property was his
and protested their being there, the company continued to finish their
work.
It is clear that the company was upon Mr. Stark’s property
without authorization. The company
relied on maps, as it does in its normal course of business. It is not
feasible, due to costs, for the company to perform title searches each time it
lays pipe, nor is it ordinarily necessary. There were no markings to show that the
property was private. And, the road
chosen by the company was the better road to trench and lay pipe. However, as agreed by the parties, the company
has clearly entered upon Mr. Stark’s private property without a right-of-way.
Conclusion
Although it is clear that the company entered upon the private
property of Mr. Stark, the Commission cannot conclude that there has been a
violation of the company’s tariff, a Commission rule, or any statute within the
Commission’s jurisdiction. As the
Complainant, Mr. Stark bears the burden of showing any violation. He has not carried this burden. The Commission must therefore find in favor
of Summit.
This order will become final unless an application for rehearing
is filed prior to the effective date set out below. Information regarding the rehearing and
appeal process can be found at 4 CSR 240-2.160 and Chapter 386 of the Revised
Statutes of Missouri.
THE COMMISSION ORDERS THAT:
1.
Summit Natural Gas of Missouri has not violated
its tariff, any Commission rule or order or any statute within the Commission’s
jurisdiction.
2.
This order shall become effective on June 21,
2015.
3.
This file shall be closed on June 22, 2015.
BY THE COMMISSION
Morris L. Woodruff
Secretary
R. Kenney, Chm.,
W. Kenney,
Hall, and Rupp,
CC., concur.;
Stoll, C., absent;
and certify
compliance with the
provisions of
Section 536.080, RSMo.
Dated at Jefferson City, Missouri,
on this 11th day of June, 2015.
