Emily RUTHERFORD, Plaintiff-Appellant, v. COLUMBIA GAS, Defendant-Appellee, 575 F.3d 616

OPINION ROGERS, Circuit Judge. Like cases should end in like judgments. Once this court decides questions of law presented in a dispute, a nearly identical dispute ought to yield a similar outcome. Emily Rutherford challenges the Columbia Gas Transmission Corporation’s ability to maintain its pipeline easement by clearing certain trees from her land, but her appeal comes to us soon after we affirmed the same magistrate’s rejection of another landowner’s similar claims concerning a similar easement relating to the same gas pipelines.

The facts and legal arguments of the two appeals are nearly indistinguishable, so our prior decision requires affirmance of the judgment below. While the application of stare decisis to this case is straightforward, the procedural posture creates problems of appellate jurisdiction. This suit commenced when Rutherford (a citizen of Ohio) filed an Ohio court suit to keep Columbia from cutting down seven trees that grew on Columbia’s easement on her land. She sought a declaratory judgment protecting the trees, a declaratory judgment defining the easement, damages, and costs.

Columbia (incorporated in Delaware; principal place of business in West Virginia) removed based on diversity jurisdiction and filed various counterclaims. Columbia’s counterclaims included a request for a declaratory judgment defining its easement, permitting it to remove the trees, and finding Rutherford liable for various damages; a claim for injunctive relief; a claim for damages for breach of contract and property rights; a claim for punitive damages; and a claim for attorney fees and costs.

The magistrate made various findings of fact and conclusions of law that explicitly rejected each of Rutherford’s claims. However, the magistrate did not address Columbia’s then-still-pending counterclaims. Nevertheless, the magistrate directed the clerk to enter judgment for Columbia based on the findings, and Rutherford filed a notice of appeal from the judgment, even though it was not final because it did not resolve all claims between the parties. See Fed.R.Civ.P. 54(b).

After we directed the parties to supplement their inadequate jurisdictional briefing and address this problem, the parties evidently asked the district court to amend the judgment. The magistrate entered an order entitled “Nunc Pro Tunc Order Entry of Judgment.” The order reiterates the previously entered judgment, without explanation adds a declaratory judgment finding a right of way of 25 feet on each side of the pipelines, and dismisses Columbia’s other counterclaims. The magistrate did not seek leave under Fed.R.Civ.P. 60(

a) to correct the judgment while an appeal was docketed in this court, and it is hardly clear that an order that adds new relief to a judgment could be a correction within the scope of Rule 60(a). But resolution of that question is not necessary because at oral argument Columbia explicitly stated that it was willing to relinquish all of its claims for relief in order to ensure appellate jurisdiction. While we do not encourage this procedure, it is enough to permit the exercise of appellate jurisdiction in this case. See Scarbrough v. Perez, 870 F.2d 1079, 1081-82 (6th Cir.1989); G.G. Marck & Assocs., Inc. v.

Peng, 309 Fed.Appx. 928, 931-32 (6th Cir.2009); but see Smoot v. Mazda Motors of Am., Inc., 469 F.3d 675, 676-78 (7th Cir.2006) (both parties ordered to show cause why their counsel should not be sanctioned for deficient jurisdictional statements). All of Columbia’s counterclaims, including its request for declaratory relief, are therefore considered dismissed with prejudice. We thus have jurisdiction to review the magistrate’s rejection of Rutherford’s claims for relief. These claims are largely controlled by our recent decision in Andrews v. Columbia Gas Transmission Corp., 544 F.3d 618 (6th Cir.2008).

There we upheld the rejection of similar claims against Columbia for removing trees from its easement across Andrews’s land. See id. at 621-22. Like Rutherford, Andrews had requested declaratory and injunctive relief to protect trees on the easement. Id. at 622. As in Rutherford’s case, the magistrate rejected Andrews’s Ohio law claims of laches, estoppel, and waiver. Id. at 622-23. And as he did in Rutherford’s case, the magistrate found that Columbia’s planned tree removal was consistent with the terms of the easement. Id. Rutherford offers little to distinguish her case from the judgment affirmed in Andrews.

In her reply brief, Rutherford argues that the court should distinguish Andrews because Rutherford’s trees likely had been planted in the mid-1950s, around the time Columbia’s predecessor obtained the last of the easements at issue. The Andrews trees did not exist at the time of the creation of the easements at issue in that case. Id. at 625. Rutherford argues that the fact that the gas company allowed small trees to remain on the property when it installed the second gas line shows that the parties contemplated allowing large trees to grow on the easement.

But in construing an express easement with unclear dimensions, the court considers not only “circumstances surrounding” the creation of the easement, but also “what is reasonably necessary and convenient to serve the purposes for which the easement was granted.” See id. at 624 and cases cited therein. Thus even if the circumstances surrounding the creation of the easements are marginally different in the two cases, Rutherford has no developed argument as to how the magistrate’s finding that a cleared right of way is reasonably necessary is distinguishable from the similar finding upheld in Andrews.

See id. at 626-30. Because in Andrews we upheld an indistinguishable factual finding that a cleared right of way is reasonably necessary to serve the purpose of the easement, we must uphold that magistrate’s finding in this case that Columbia may clear trees from Rutherford’s easement. And clearing even a 15-foot right of way on each side of the pipelines would require the removal of the seven trees at issue here. Thus, Rutherford is not entitled to relief on any of her claims.

Rutherford also contests the magistrate’s holding that various equitable doctrines do not apply to express easements as a matter of Ohio law. But when pressed on this point at oral argument, her counsel conceded that Andrews’s identical holding controls, and counsel merely invited us to “reconsider” Andrews. A published prior panel decision “remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.” Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985).

Without taking a case en banc, a “panel cannot” reconsider a prior published case that interpreted state law, “absent an indication by the [state] courts that they would have decided [the prior case] differently.” Blaine Constr. Corp. v. Ins. Co. of N. Am., 171 F.3d 343, 350 (6th Cir.1999). Or, as we recently stated in a diversity case, “[w]e are bound by [a prior published case that interpreted Ohio law] unless Ohio law has measurably changed in the meantime.” Big Lots Stores, Inc. v. Luv N’ Care, Ltd., 302 Fed.Appx. 423, 427 (6th Cir.2008).

The Tenth Circuit has explained: Where no controlling state decision exists, the federal court must attempt to predict what the state’s highest court would do. In performing this ventriloquial function, however, the federal court is bound by ordinary principles of stare decisis. Thus, when a panel of this Court has rendered a decision interpreting state law, that

interpretation is binding on district courts in this circuit, and on subsequent panels of this Court, unless an intervening decision of the state’s highest court has resolved the issue. Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir.2003). As no Ohio court has suggested that Andrews misapplied Ohio law or reached a contrary holding, Andrews’s holding that laches, estoppel, and waiver do not apply to expressly granted easements controls this case. See Andrews, 544 F.3d at 630-31. That conclusion is sufficient to resolve this case.

Moreover, we decline to exercise our discretion to certify questions of state law to the Ohio Supreme Court. First, no party has requested certification at any stage of this litigation. Second, certification is not warranted because it would arguably be inconsistent with the Andrews court’s determination not to seek such a certification sua sponte. Third, available evidence does not suggest that the Ohio Supreme Court is likely to disagree with Andrews’s

interpretation of Ohio law. At the parties’ request, we consider the district court’s purported nunc pro tunc order as a confirmation that Columbia has agreed to the dismissal of its counterclaims. Because the order appealed from properly denied Rutherford relief on her claims, we affirm.