one one is called the b r eight eight six pipeline which runs along the top of the mountain and then there is the d c four pipeline which runs along the side of the mountain and are totally separate issues correct how how do you continue that we should define all roads well i don't think that you can your honor i think that that's a jury issue and that's the point is is if you look at the affidavits of billy h to me a whole road is simply something that you can haul something over it's not a highway or anything else and they're all over the mountains down there and stand and but  this is another affidavit not charles hopkins their employee number forward says the pop land now known as b r eight eight six pop line previously crossed upon the surface of the subject tracked and the location different than where it is located today  i think the crux of this matter where the judge is deciding yeah if they moved it after you purchased it they change the status quo but they didn't do that and he made that finding and i and that's based on the quinn tain case correct looking to look to the status quo and who changed the status quo to determine who pays basically well is that right based on quintin and that's what i think the judge is looking at in that case he was looking to see that in ink when telling didn't the court of company was wanting to move it they needed it moved so they say hey we want to move and right so they want to change the way it was before and logically they should pay for that and my point is in quintin they had to go to the status quo argument because there wasn't language in the lease sword the documents to look to don't you contend here that there is language is third should go there first i think if you go to paragraph that leads and of course the definition we think of want to haul road that be up to a jury and our pain and we think that but how would a judge instructed yuri to decide on disputed facts whether something that it's a factual question then the judge's responsibility is to instruct the jury on the law applicable to the case  that the facts that support a conclusion as to whether or not certain facts fit within a definition but it's just state as pointed out you've got to give the jury some guidance as to what what that means and what about looking at the regulations and west virginia law the talk about roads used for mining or logging i mean there were two or three that i found that you might suffice and they aren't specifically defined as paul rhodes but i think that's just just dave's point it's got to be some limitations of some direction which to to get to a jury but i guess the more important point here is that the judge never got there because he found as a matter of law that he had met your burden but i think that is two ways to get at it as far as a prevailing one would be the if they went in and change the status quo if they did as we say they did after we purchase they went up and moved the pipeline and crossed over over whatever it was whether the path then then they changed the status quo in what would provide that's a factual issue moved than if it was moved and there was never a hall road there to begin with and how do you win well i don't think you can go over something on somebody's property move it would affect things which it didn't this case and then expect us to pay for  going back to the who pays did did either party consider or address paragraph eighteen in the lease that talks about  thousand and we're talking about turning to the that issue i'm sure the court is aware that well let me give you some of the background that happened on this case date they filed a suit which was on january twenty sixth of two thousand that have the judge had a brief that issue and we made a move for summary judgment on that issue and the judge denied our  there after the judge instructs us to prepare instructions we prepare our instructions that they prepared twenty two of them there's no contention there's a contractual issue it's all toward their verdict forms of same way there is a  admissibility and to its relevancy to the case the after the after they rest their case for the first time and it's clear from their evidence that the last date that they could even prove that we might have put dirt on it was november twenty one two thousand and one we go in move for a directed verdict because on stage your limitations they can say well our lease is a contract thereafter after the case is it is concluded well the judge then and instead of instructing the jury as to the law what have you he says i'm just going to give several questions to the jury you answer when you when they put the last word on it and i'll decide the law well about three months later the justice out of the wall he says he goes back to the lease and say is that that's a contract that count three sounds and contract and therefore i'm going to him what was wrong with that process that procedure well the lease was never introduced into evidence bah at the trial well there's no dispute that the lease existed right no but i would this is a jury trial and he would have to put in evidence when well but if the jury wasn't being asked to make a determination about the legal effect of the lease why would it have been necessary to make it  exhibit before the jury will think about your honor if he had his father what was normal that i've never seen what he did here ever before in my life and i've been practicing forty six years is always the judge instructs them as t i thought the jury's verdict simply required the judge to apply the law to the facts the judge concluded that paragraph eight of the lease contained contractual saying right let me say this in the jury provided the factual basis for the virtual ministerial act of simply a lot i don't mean that literally of course but but basically the judge looked at the least looked at the jury's answers still has to find that this is an act that they claim we committed which was seven years before they filed their sued fits within the ambit of west virginia code fifty five to six which requires a written contract between the parties there was no contract all we did was by the surface subject to the rights of these outstanding eastment that's all we did we saw nothing and i'd like to point up the court in the sense and case which i think is really relevant here in west virginia and well one of those didn't do that so the suit was brought twenty years after the fact and the judge the court was look and say well how far can you go back and you go back to can you go back five well the court there said only five years they said even though all of them signed this thing there was r little lose it with your good morning my name's dave hundreds from along with steve hastings we represent attorney from charleston west virginia basically your honour's is a pretty simple proposition we had two different pipelines on the same piece of property where we had unease from arising out the same lease and what the lease provision said in paragraph eight was with all pipelines except those used to conduct gas and water for the drilling engine shall be buried below plough depth in cultivated and in a state they're crossing into roads highways or hallways the issue here is two fold under the first motion where the judge granted summary judgment but the judge found was it didn't that wasn't the whole read and there's a very good reason why he found that way first of all all the evidence presented underneath to the to the judge to judge copenhagen was was that that what the pathway when they were crossing had been used as a whole road forever or was ever used as all right what happened was  in tender these roads and never been used this path never been used for that and if the facts if i could back up for second explain my position what happened was the reason we got into this dispute was the mall company wanted to put a cell tower on top of a mountain ok our pipeline we contend had been in place the one that at issue in this first motion since ninety seven or ninety eight judge copenhagen weighing all the evidence to took in the light most favorable to the defendants and said well i'm going to find they were in place by at least two thousand one they didn't the other way was that it was i don't mean to interrupt but was that a finding was a conclusion of law based so your point is when when the district court considered everything that was before the court only one reasonable conclusion was possible corrected then that is that at least by two thousand and one the pipeline was crossed ok that path ok and so the pipeline remains undisturbed through two thousand and one through two thousand and eight it doesn't become an issue until two thousand and eight when they want to put a cell tower up on the mountain and they brought excavators up to try to cut underneath the pipeline and it dangled almost twelve feet in the air and we asked them to stop we saw an injunction because we were afraid of somebody quite frankly blown themselves up so what happened between two thousand and two thousand it was the evidence was nobody used that road and the only other evidence presented about the little pathway was was that it might have been used by the gas company when they drilled and also if they had to transport pipe back up the hill but it wasn't being used as a whole road as was contemplated by the original lease and the original lease contemplated the moving of coal and temper and this was never used as a hall road under that definition so judge copenhagen  wasn't actually defined in the original leath was well if you look at a good question it doesn't say it doesn't define it per se but what the original lease was between a coal company and what they did was they reserve the right to take the coal and temper off the property and so that's why this clause was in there so that the pipeline wouldn't run across the road they're using to haul coal and timber off the property that's why i'm saying it was defined that way the second point on number one if i could in those are the questions on point one is that contain is right on point contained says when you violate the status quo which they did when they put their dozer up there and started cutting underneath the pipeline then it became a dangerous situation and we have to would have to move the pipeline if they wanted us to if they wanted to continue to cut the road and so we said look we're willing to move our pipeline if you'll pay for it for in clinton with more we get to the status quo considerations if there is a lease or other contractual document don't we look to it first in terms of cost of legations absolutely ok so  maybe you can have the internet out for a cause it looks like paragraph eighteen does discuss in some part who is to pay for the contractual undertakings contained in paragraph eight does it or does it not  honor refers to simply when you first place the pipeline on the ground it would be our car cost to put pay for that pipeline replaced and then and then contain what it does is seen only when the pipeline is very first put in the place where you require the totality of the lease i think it becomes clear at least i believe it becomes clearer that that it talks about the original placement of the pipeline with this something that the district court considered he considered that in conjunction paragraph eight but the second point that i want to make if i may your honor says under quinn tain then you have to look at whether or not there's a cost shifting paragraph in the lease and clearly what the defendant relying on about placement under a hall road isn't a caution provision so even if the district court was wrong even if he was wrong that it is a hall road they still have to pay for the relocation because it's the change of the status quo and it's very simple in and why the court found that before in contain we don't benefit from by moving the pipeline we're happy to have a right where it is it could stay there for the next thirty years if you're going to benefit from this move in the pipeline was the defendant and the reason they benefited from was was because they wanted us to move it so they could put a cell tower on top of the hill as a rule of equity it is you know the questions on the first one i'll move on to the second  the second one is is the facts i think i need to bear out with you a little bit if you don't mind what happened was when the second was we had a second pipeline that was down next to where they're developing them all call the foam place mall the pipeline had been moved once before at the request of the mall owners and they paid for the relocation wasn't dystrophin it but it was their predecessor we move the pipeline and what happened was once again placed on top of the pipeline which as you will well know could very well hurt the entirety of pipeline and cause explosions in trouble we asked them to cease and desist we got a negotiation zone who was on who was going to move the pipeline we have eventually decided heck we're going to go ahead and do it ourselves and we'll fight about who's going to pay for it later and that's what we did that's what we came up with one hundred fifty thousand dollars in damages that was depleted to we follow a lawsuit we've bring in three three three coins negligence trespass and and the status quo under contain the court then we go along we develop the evidence the court of the pretrial conference says because the defendant raised for the first time i need a brief on this issue about statute of limitations and david maybe i want you to respond to it the defendant raised the issue over to your statue limitations we responded to that to that that brief by saying we thought we didn't think the two years to actual imitations applied to what in histon instance because of the fact that it was a reoccurring toward or continuing toward judge copenhagen ruled on that issue and told me told us that a trial we couldn't argue the fact about it being a continuing toward he was wrong as a matter of law that didn't count but what he did then though and if you look at what happened the judge fashioned a trial that simply asked the jury to determine these things to place during the line when was the last time they place dirt on the line and when did my client know or should have known that they place dirt on the line clearly to set up the issue of statue limitations or what statute limitations should apply and the judge made it very clear that after the jury rendered their verdict on those questions he would make his decision and apply the statue limitations law so the jury went out and the jury found that the defendant's predecessor placed dirt on the line and the date and when we should have known it they found that the defendant place dirt on the line and the date last day they did it and when we should have known it and then they made a decision as to what of three towards three earth not three tours but three counts remained one was a negligence one was in trust class and one was status quo they found they found against my fact the judge then said i'm going to ask you to brief the issues of statute of limitations and we did we did and that when it did and we raised the ten year statue limitations and it's very on the damages have been stipulate toward the court did said though that contain is clearly a contractual cause of action and it's in is pretty simple and contain all of the cause of action arose out of the lease and the you don't have to be the original signatories to the contract because your easement rights continue no matter who owns the property we can sell our lease to another gas production company they still get to enjoy the rights of the easement they have on the property mr parr tains klein fountain place can sell the surface rights but it's still subject to our easement clearly a contractual obligation and when he violated the status quo it violated our contractual rights under contain and a ten year statue limitations apply and that's how judge copenhagen rendered his decision because the jury found that mr khartoum's client placed dirt on our pipeline in two thousand and one we should have known by two thousand and one that he did so we brought a cause of action in two thousand and nine within a ten years to actual imitation questions you make it all seem so i wish it was as much as we do come as hall roads at all times in the correspondence and they even stipulate that there's an issue of fact as to that and yet yet we were supposed to lose that it's not an issue of  kokanee still owns all the rights everything in that lease was directed to they and they prepared that lease and they have the right and and so if we didn't get any rights under that lease all happened all i can say is i still think that it's a at best an implied contract because we did not sign in thing contracts or you know they have mutual obligations going to each other and i think if you look at fifty five days today six you'll