[Cite as Kinder Morgan Cochin L.L.C. v. Simonson, 2016-Ohio-4647.]

COURT OF APPEALS 

ASHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

KINDER MORGAN COCHIN LLC 

 Plaintiff-Appellee 

-vsROBERT M. SIMONSON, TRUSTEE 

 Defendant-Appellant 

JUDGES: 

Hon. Sheila G. Farmer, P. J. 

Hon. William B. Hoffman, J. 

Hon. John W. Wise, J. 

Case No. 15 COA 044 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, 

Case No. 15-CIV-215 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: June 27, 2016 

APPEARANCES: 

 

For Plaintiff-Appellee For Defendant-Appellant 

GREGORY D. BRUNTON DANIEL J. PLUMLY 

DANIEL J. HYZAK ANDREW P. LYCANS 

BRUCE A. MOORE CRITCHFIELD, CRITCHFIELD & 

REMINGER CO., LPA JOHNSTON 

65 East State Street, 4th Floor 225 N. Market Street, P. O. Box 599 

Columbus, Ohio 43215 Wooster, Ohio 44691 
[Cite as Kinder Morgan Cochin L.L.C. v. Simonson, 2016-Ohio-4647.]

Wise, J. 

{¶1} Defendant-appellant Robert M. Simonson, Trustee, appeals the decision 

of the Ashland County Court of Common Pleas granting summary judgment in favor of 

Appellee Kinder Morgan Cochin LLC. 

STATEMENT OF THE FACTS AND CASE 

{¶2} Over the last five years, Ohio has experienced an increase in oil and gas 

development in the Utica and Marcellus Shale regions. The development of the Utica 

Shale in Ohio has dramatically changed the oil and gas industry in Ohio. (T. at 14-15). It 

was only within the last few years that the technology was developed to exploit this 

resource. (T. at 41). While previous production in the state consisted primarily of oil and 

natural gas, many of the wells which have been drilled in the Utica Shale recently 

primarily produce "wet gas," meaning natural gas liquids such as ethane, propane, and 

natural gasoline. (T. at 14-15, 33). Due to the significant number of wells which now 

produce wet gas, gas producers have been looking for ways to bring the substances 

produced in these wet gas fields to market. (T. at 14-15, 40). Unlike natural gas, wet 

gas must go through a fractionation or separation process prior to transport and is 

transported as a liquid rather than a gas. (T. at 41, 46). 

{¶3} Appellee Kinder Morgan Cochin, LLC operates a petroleum products 

pipeline system from Saskatchewan, Alberta, Canada, through parts of the United 

States and Canada, to Windsor, Ontario, Canada. Kinder Morgan responded to these 

newly created transportation needs by assessing the industries' interest in a new 

interstate pipeline system that would move ethane and propane from Ohio to Canada. 

The proposed pipeline system is called Utopia. In order to evaluate the economic 
Ashland County, Case No. 15 COA 044 3 

viability of the Utopia Pipeline Project, Kinder Morgan's business development team 

engaged numerous petroleum producers and shippers operating in the region in order 

to determine whether the project had the necessary support to justify its enormous 

projected cost. (T. at 14-15). The interest assessment phase of the project was 

conducted primarily through an "Open Season" wherein Kinder Morgan sought out 

shipping commitments for the completed project. Id. During the Open Season, Kinder 

Morgan secured a transportation agreement with Nova Chemicals for approximately 

90% of the Utopia Pipeline's initial transportation capacity, which allowed it to proceed 

from the interest assessment phase to the development phase. 

{¶4} In accordance with its pipeline development schedule, Kinder Morgan was 

required to apply for and receive approval of its proposed tariff structure from the 

Federal Energy Regulatory Commission (FERC). Kinder Morgan obtained FERC 

approval of its proposed tariffs pursuant to a Declaratory Order issued in 2015. (T. at 

16). Under the FERC Declaratory Order, Kinder Morgan is required to "keep 10 percent 

of the capacity of the pipeline available for ... walk-up shippers ... [whose] rates also 

have to be approved by the Federal Energy Regulatory Commission." Id. Under FERC 

rules, walk-up and public shippers alike cannot be discriminated against when it comes 

to transportation of petroleum on the Utopia Pipeline. (T. at 54). This is true even if they 

happen to elect more than their specifically allotted 10% capacity due to specific 

nondiscriminatory allocation procedures set by FERC. Id. In addition to needing FERC 

approval of its tariffs, Kinder Morgan was required to obtain additional pipeline permits 

from the Ohio Environmental Protection Agency, the Army Corp. of Engineers, along 

with review/consultation with the U.S. Fish and Wildlife Service and the Ohio Historic 
Ashland County, Case No. 15 COA 044 4 

Preservation Office, before any construction of the Utopia Pipeline could begin (the 

"Pipeline Permits"). (T. at 24). 

{¶5} Of critical importance in the underlying lawsuit is the fact that the required 

Pipeline Permits would not be granted by the relevant bodies until Kinder Morgan had 

completed certain civil, archeological and environmental surveys on every tract of land 

situated along the Utopia Pipeline route. (T. at 10). Further, completion of the 

applications for the necessary Pipeline Permits required that Kinder Morgan have 

access to every tract of land situated along the Utopia Pipeline route. (T. at 11). 

{¶6} Given the exacting requirements of the Utopia Pipeline's permitting 

process, Kinder Morgan's survey access to Appellant Robert Simonson's property was 

essential to ensuring that the information provided in its Pipeline Permit applications 

was correct. Id. Delays in the permitting process would cause delays in the 

development schedule, thereby risking Kinder Morgan's ability to meet its contractual inservice dates. (Id. at 5). For these reasons, Kinder Morgan's completion, submission, 

and approval of the Pipeline Permit applications was vital for Kinder Morgan to ensure 

its investors and committed shipper that it would be able to meet its contractual 

obligations. Id. 

{¶7} Kinder Morgan contacted Appellant and requested permission to enter 

onto his property for the purpose of conducting such pipeline surveys but was ultimately 

informed that Kinder Morgan would have to seek legal action because an agreement 

could not be reached. (See Affidavit Certificate of Daniel J. Hyzak, Esq.) 

{¶8} On October 30, 2015, Appellee Kinder Morgan Cochin LLC ("Kinder 

Morgan") filed a Complaint for Declaratory Relief; Temporary Restraining Order; 
Ashland County, Case No. 15 COA 044 5 

Preliminary Injunction; Permanent Injunction against Robert M. Simonson, Trustee 

("Simonson"). The Complaint sought an order granting Kinder Morgan access to 

Simonson's property for the purpose of conducting surveys, inspections and 

examinations under R.C. §163.03. The Complaint further sought a temporary restraining 

order, preliminary injunction, and permanent injunction barring Simonson from 

obstructing Kinder Morgan's access to his property to conduct such surveys, inspections 

and examinations. 

{¶9} That same day, Kinder Morgan filed a Motion for Temporary Restraining 

Order and Preliminary Injunction and Permanent Injunction (hereinafter "Motion"). 

{¶10} On November 23, 2015, the trial court held an evidentiary hearing on the 

Motion. At the beginning of that hearing, the court expressed its understanding that the 

purpose of the hearing was essentially to determine the definition of petroleum. (T. at 7). 

The trial court further indicated that it felt the Fifth District Court of Appeals' decision in 

Ohio River Pipe Line, L.L.C. v. Henley, 144 Ohio App. 3d 703 required a finding that 

"petroleum" includes "natural gas liquids" such as ethane and propane. (T. at 35-37). 

{¶11} On December 10, 2015, the trial court issued a judgment entry finding 

that: (1) Kinder Morgan is a common carrier; (2) this Court's decision in Henley required 

a broad reading of the term "petroleum" as used in R.C. § 1723.01 and that natural gas 

liquids fell within such a broad reading; and (3) the trial court did not need to determine 

whether the proposed pipeline constitutes a public use in order to allow access pursuant 

to R.C. §163.03. The trial court held that Kinder Morgan could enter onto Simonson's 

property and enjoined Simonson from interfering with Kinder Morgan's "statutory right" 

to enter the property and conduct surveys. 
Ashland County, Case No. 15 COA 044 6 

{¶12} Appellant Simonson now appeals, assigning the following errors for 

review: 

ASSIGNMENTS OF ERROR 

{¶13} “I. THE TRIAL COURT ERRED IN HOLDING THAT THE TERM 

PETROLEUM, AS USED R.C. § 1723.01, INCLUDES NATURAL GAS LIQUIDS SUCH 

AS ETHANE AND PROPANE AND GRANTING A PERMANENT INJUNCTION BASED 

UPON THAT HOLDING. 

{¶14} II. THE TRIAL COURT ERRED IN HOLDING THAT KINDER MORGAN 

QUALIFIES AS A COMMON CARRIER UNDER OHIO LAW WITH REGARD TO THE 

UTOPIA PIPELINE PROJECT AND GRANTING A PERMANENT INJUNCTION BASED 

UPON THAT HOLDING. 

{¶15} III. THE TRIAL COURT ERRED IN HOLDING THAT KINDER MORGAN 

HAD PREVAILED UPON THE MERITS, THEREBY ENTITLING IT TO A PERMANENT 

INJUNCTION, WITHOUT FIRST DETERMINING WHETHER KINDER MORGAN'S 

PROPOSED USE OF SIMONSON'S PROPERTY WOULD CONSTITUTE A PUBLIC 

USE SUCH THAT KINDER MORGAN COULD INVOKE AN EMINENT DOMAIN 

STATUTE TO ENTER ONTO SIMONSON'S PROPERTY.

Permanent Injunction

{¶16} The standard of review for this Court regarding the granting of an 

injunction by a trial court is whether the trial court abused its discretion. Perkins v. 

Quaker City, 165 Ohio St. 120, 125, 133 N.E.2d 595 (1956). In an action for a 

temporary or permanent injunction, the plaintiff must prove his or her case by clear and 
Ashland County, Case No. 15 COA 044 7 

convincing evidence. Franklin Cty. Dist. Bd. of Health v. Paxon, 152 Ohio App.3d 193, 

202, 2003–Ohio–1331, 787 N.E.2d 59 (10th Dist.).

{¶17} Clear and convincing evidence has been defined by the Supreme Court of 

Ohio as that measure or degree of proof that will produce in the mind of the trier of facts 

a firm belief or conviction as to the allegations sought to be established. Cross v. 

Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). It is intermediate, being more 

than a mere preponderance, but not to the extent of such certainty as is required 

beyond a reasonable doubt, as in criminal cases. Id. It does not mean clear and 

unequivocal. Id.

{¶18} In determining whether to grant injunctive relief, courts take into 

consideration the following four factors: (1) the likelihood or probability of a plaintiff's 

success on the merits; (2) whether the issuance of the injunction will prevent irreparable 

harm to the plaintiff; (3) what injury to others will be caused by the granting of the 

injunction; and, (4) whether the public interest will be served by the granting of the 

injunction. Corbett v. Ohio Bldg. Auth., 86 Ohio App.3d 44, 49, 619 N.E.2d 1145 (10th 

Dist.1993).

I. 

{¶19} In his First Assignment of Error, Appellant argues that the trial court erred 

in holding that the term petroleum, as used R.C. §1723.01, includes natural gas liquids 

such as ethane and propane. We disagree. 

{¶20} In Ohio River Pipeline LLC v. Henley, 144 Ohio App.3d 703, this Court 

held that “petroleum,” as used in R.C. §1723.01, included refined substances and 

petroleum by-products, and was not limited to natural substances. In reversing the trial 
Ashland County, Case No. 15 COA 044 8 

court’s holding that the term petroleum means only naturally occurring substances and 

not petroleum by-products, this Court stated: 

We must read R.C. Title 1723 as a whole to understand to what 

substances the legislature referred in using the term “petroleum.” R.C. 

1723.06 uses the term “oils” instead of “petroleum.” The statute does not 

distinguish between the two words but uses them interchangeably. 

Elsewhere in the Revised Code, the legislature has defined the words 

“petroleum” and “oil” synonymously. See R.C. 3737.87; R.C. 3746.01; 

R.C. 1509.01. The Ohio Supreme Court has recognized that it is helpful to 

look to definitions elsewhere in the Revised Code to determine the 

meaning of terms not defined in a particular statute. See Akron Transport 

Co. v. Glander (1951), 155 Ohio St. 471, 44 O.O. 435, 99 N.E.2d 493. 

{¶21} In construing statutory terms, we are guided by the legislature's use of the 

same terms defined elsewhere in the Revised Code. See Cablevision of the Midwest, 

Inc. v. Gross (1994), 70 Ohio St.3d 541, 639 N.E.2d 1154. 

{¶22} As stated above, the Ohio legislature has defined “petroleum” and “oil” in 

other sections of the Revised Code to include refined petroleum liquids. 

{¶23} R.C. §3737.87(J), which refers to underground storage tanks, provides: 

‘Petroleum’ means oil or petroleum of any kind and in any form, 

including, without limitation, crude oil or any fraction thereof, petroleum, 

gasoline, kerosene, fuel oil, oil sludge, oil refuse, used oil, substances or 

additives utilized in the refining or blending of crude petroleum or 

petroleum stock, natural gas, natural gas liquids, liquefied natural gas, 
Ashland County, Case No. 15 COA 044 9 

synthetic gas usable for fuel, and mixtures of natural gas and synthetic 

gas. 

{¶24} R.C. §3746.01(L) also contains the identical definition of petroleum. 

{¶25} Other courts have also construed the term “petroleum” to include refined 

petroleum products. See Nat. Gas & Oil Corp. v. Hamby (Mar. 20, 1981), Muskingum 

App. No. CA 80-27, unreported, 1981 WL 6185, citing Alexander v. Buckeye Pipe Line 

Co. (1978), 53 Ohio St.2d 241, 374 N.E.2d 146. 

{¶26} In the instant case, the evidence showed that, within the petroleum 

industry, “petroleum” included the refined products that Kinder Morgan intends to 

transport through the pipeline. The trial court heard undisputed testimony from Allan 

Campbell that within the petroleum pipeline industry, the definition of petroleum includes 

natural gas liquids such as ethane and propane. (T. at 9). 

{¶27} Further, Webster's Third New International Dictionary (1993), defines 

“propane” as a gas that occurs naturally in crude petroleum and natural gas. Therefore, 

propane is a “natural gas”. 

{¶28} Based on the foregoing, we find that the trial court did not err in finding 

that the term petroleum as used in R.C. §1723.01 includes the natural gas liquids 

ethane and propane. 

{¶29} Appellant’s First Assignment of Error is overruled. 

II. 

{¶30} In his Second Assignment of Error, Appellant argues the trial court erred in 

holding that Kinder Morgan qualifies as a common carrier under Ohio law with regard to 

the Utopia Pipeline project. We disagree. 
Ashland County, Case No. 15 COA 044 10 

{¶31} R.C. §1723.08 provides: 

With respect to the transporting by it of natural gas, petroleum, coal 

or its derivatives, water, and electricity, a company described in section 

1723.01 of the Revised Code is a common carrier and is subject to the 

duties and liabilities of a common carrier under the laws of this state. A 

company described in section 1723.01 of the Revised Code includes any 

firm, partnership, voluntary association, joint-stock association, company, 

or corporation, wherever organized or incorporated, when engaged in the 

business of transporting petroleum through tubing, pipes, or conduits as a 

common carrier. 

{¶32} At the hearing in this matter, Kinder Morgan provided testimony that it was 

in fact a common carrier pipeline “engaged in the business of transporting petroleum 

through tubing, pipes, or conduits.” (T. at 15-17). 

{¶33} Upon reviewing the relevant case law, we find that “common carrier” is 

consistently defined as “one who undertakes to transport persons or property from place 

to place, for hire, and holds itself “ ‘out to the public as ready and willing to serve the 

public indifferently.’ ” Harper v. Agency Rent–A–Car, Inc. (C.A.5, 1990), 905 F.2d 71, 

quoting Burnett v. Riter (Tex.App.1925), 276 S.W. 347, 349; 13 Ohio Jurisprudence 3d 

(1995) 567, Carriers, Section 1. The common carrier must hold ‘itself ready to serve the 

public impartially to the limit of its capacity.’ Id. “The fundamental test of common 

carriage is whether there is a public profession or holding out to serve the public.” New 

England Transrail, L.L.C. Construction, Acquisition, and Operation Exemption, STB 

Finance Docket No. 34797, 2007 WL 1989841, (June 29, 2007). 
Ashland County, Case No. 15 COA 044 11 

{¶34} Here, we find that the evidence presented supports the trial court’s finding 

that the Utopia Pipeline is a common carrier pipeline. Testimony was presented that 

Kinder Morgan holds itself out to be a common carrier and that the pipeline will be 

available to anyone wanting to transport their petroleum products. (T. at 16-18). 

Testimony was presented that Kinder Morgan held an “Open Season” wherein anyone 

who wanted to reserve capacity of the Utopia Pipeline to transport petroleum was able 

to sign a transportation agreement with Kinder Morgan. (T. at 15-16). Evidence was 

also presented that both Kinder Morgan and its committed shipper, Nova Chemicals 

Corp. both recognized Kinder Morgan as a common carrier in their Transportation 

Services Agreement. (See Nov. 23, 2015 Hearing). 

{¶35} Based on the evidence presented, we find that the trial court did not err in 

finding that Appellee Kinder Morgan is a common carrier with regard to the Utopia 

Pipeline. 

{¶36} Appellant’s Second Assignment of Error is overruled. 

III. 

{¶37} In his Third Assignment of Error, Appellant argues that the trial court erred 

in failing to determine whether Kinder Morgan's proposed use of Simonson's property 

would constitute a public use. We disagree. 

{¶38} In the case sub judice, Appellee’s action for a restraining order and 

injunction were filed pursuant to R.C. 1723.01 and 163.03, which provide as follows: 

{¶39} R.C. 1723.01 Power to enter upon and appropriate land 

If a company is organized ... for transporting natural or artificial 

gas, petroleum, coal or its derivatives, water, or electricity, through tubing, 
Ashland County, Case No. 15 COA 044 12 

pipes, or conduits, or by means of wires, cables, or conduits; for storing, 

transporting, or transmitting water, natural or artificial gas, petroleum, or 

coal or its derivatives, or for generating and transmitting electricity; then 

such company may enter upon any private land to examine or survey lines 

for its tubing, pipes, conduits, poles, and wires, ... and may appropriate so 

much of such land, or any right or interest therein, as is deemed 

necessary for the laying down or building of such tubing, conduits, pipes, 

dams, poles, wires, reservoir, plant, powerhouse, storage yards, wharves, 

bridges, workshops, receiving and delivery structures or facilities, pumping 

stations, and any other buildings, structures, appliances, or facilities 

necessary to the purposes of such companies, ... 

{¶40} R.C. 163.03 Entry for surveys, examinations, etc.; notice; restitution 

for damages 

Any agency may, upon the notice prescribed in this section, prior to 

or subsequent to the filing of a petition pursuant to section 163.05 of the 

Revised Code, enter upon any lands, waters, and premises for the 

purpose of making such surveys, soundings, drillings, appraisals, and 

examinations as are necessary or proper for the purpose of the agency 

under sections 163.01 to 163.22, inclusive, of the Revised Code, and such 

entry shall not constitute a trespass. Notice of such proposed entry shall 

be given to the owner or the person in possession by such means as are 
Ashland County, Case No. 15 COA 044 13 

reasonably available not less than forty-eight hours nor more than thirty 

days prior to the date of such entry. 

The agency shall make restitution or reimbursement for any actual 

damage resulting to such lands . . . 

{¶41} As set forth above, Appellee is only at the preliminary survey stage. No 

Petition to Appropriate has yet been filed, which is when a hearing on “public use” and 

“necessity” would be determined. 

{¶42} Based on the statutes as set forth herein, we find that the trial court 

correctly held that Appellee Kinder Morgan has the right to enter onto Appellant’s 

property for the purpose of surveying same to determine the potential viability of the 

Utopia Pipeline project. 

{¶43} Appellant's Third Assignment of Error is overruled. 

{¶44} For the reasons stated in the foregoing opinion, the judgment of the Court 

of Common Pleas of Ashland County, Ohio, is hereby affirmed. 

By: Wise, J. 

Farmer, P.J., and 

Hoffman, J., concurs. 

 

JWW/d 0621