UNITED STATES COU RT OF APPEALS

FOR THE TENTH CIRCUIT

__________________ _______________ WAYNE PENN SCHAFER, Trustee of the Wayne Penn Schafer Separate Property Trust Est ablished October 5, 1982, as Amended and Restated on July 9, 2007,

Plaintiff - Appellant,

v.
CENTERPOINT ENERGY OKLAHOMA GAS, d/b/a CenterPoint Energy Resources Corp,

Defendant - Appellee. No. 18-5054 (D.C. No. 4:17-CV -00365-GKF-FHM) (N.D. Okla.)

__________________ _______________ ORDER AND JUDGMENT *

__________________ _______________ Before HOLMES , BACHARACH , and PHILLIPS , Circuit Judges.

__________________ _______________ This appeal stems from a proper ty dispute. The landowner allege s that a pipeline is being operate d on his land without an easeme nt, and the

* Oral argument would not material ly help us to decide this appe al. We have thus decided the appeal based on the briefs and the append ix. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This order and judgme nt does not constitut e binding precedent except under the doctrines of law of the case, res judicata, and colla teral estoppel. But the order and judgment may be cited for its persuasive valu e if otherwise appropriate. Fed. R. A pp. P. 32.1(a); 10th Cir. R. 32 .1(A). FILED United States Court of Appeals Tenth Circuit 

### May 22, 2019

Elisabeth A. Shumaker Clerk of Court2 pipeline owner insists that it ha s an easement. The district co urt granted summary judgment to both sides on some issues and denied summar y judgment on other issues. The l andowner was dissatisfied with t hese rulings and appealed, but we la ck appellate jurisdiction.

The landowner asserted t hree claims (unjust enrichment, trespas s, and nuisance) against the pipeline owner, s eeking damages and a permanent injunction. Both sid es moved for par tial summary judg ment, and the district court granted the pipeline owner’s motion on

 the applicabilit y of state law to the pa rt of the trespass clai m arising after the pipeline owner had obtained a certificate of competency 1 and

 the unavailability of unjust enrichment and punitive damages. The court also grant ed partial summary judg ment to the landowne r on multiple affirmative defenses. But the cou rt denied the landown er’s request for a permanent injunction, con cluding that the landowner had n ot shown actual success on the trespass claim. Generally, appellate jurisdictio n is confined to a district cou rt’s final decisions. 28 U.S.C. § 1291. But the rulings here did not const itute a final

decision because the district court has not yet conducted a tri al on

 the landowner’s claims for tr espass and nuisance and

 some of the pipeline owner ’s affirmative defenses.

1 The federal government issued the certificate in 1950, removi ng federal restrictions on alienation of the land.3 In the absence of a fi nal decision, a party can appeal under 28 U.S.C. § 1292(a)(1) for orders “granting, continuing, mod ifying, refus ing, or dissolving i njunctions.” 28 U.S.C. § 1292(a)(1). But even when an injunction is involved, a party cannot appeal the denial of sum mary judgment based on unre solved factual issues. Switzerland Cheese Ass’n,

Inc. v. E. Horn e’s Market, Inc. , 385 U.S. 23, 25 (1966). 2 This limitation applies here: The district court denied the landowner’s request for a permane nt injunction be cause the land owner had not proven actual succ ess on the merits. And factual issues rem ain on the defense of a prescriptive easemen t. We thus conclude that appel late

2 In Tri-State Generation & Transmi ssion Association, Inc. v. Shoshone River Power, Inc. , we used broad language when referring to the scope of appellate jurisdiction for denials of injunctive relie f: “We agree with the Eleventh Circuit in Cable Holdings of Battle field, Inc. v. Cooke [citation omitted], that an interlocut ory order expressly grant ing or denying injunctive relief fits squ arely within the plain langua ge of section 1292(a)(1).” 874 F.2d 1346, 1351 (10t h Cir. 1989). But this broad language “must be interpreted with reference to the circumstanc es of the particular case and the question under consideration.” Bryan Ga rner, et al., The Law of Judicial Precedent 80 (2016) (citatio n omitted). In Tri-State , we didn’t address the applicability of § 1292(a)(1) when the di strict court denied summary judgment on an injunction claim based on the exi stence of unresolved factual issu es. There the distri ct court had denied a summaryjudgment motion for injunctive relief based on interpretation o f a contract rather than the presence of a factual issue. Tri-State , 874 F.2d at 1350.4 jurisdiction cannot be based on § 1292(a)(1) . Given the absence of appellate jurisdiction, we dismiss the appeal.

Entered for the Court

Robert E. Bacharach Circuit Judge