Close Armstrong, LLC v. Trunkline Gas Company , LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-1630
C LOSE A RMSTRONG, LLC, et al.,
Plaintiffs-Appellants,
v.
TRUNKLINE G AS C OMPANY , LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
Nos. 3:18-cv-00270 & 3:18-cv-00494 — Damon R. Leichty, Judge.
____________________
A RGUED O CTOBER 29, 2024 — DECIDED M ARCH 31, 2026
____________________
Before EASTERBROOK, JACKSON-AKIWUMI, and MALDONADO,
Circuit Judges.
JACKSON -A KIWUMI , Circuit Judge. The Trunkline Gas Com-
pany owns the 100 Line, a natural gas pipeline that runs from
the Gulf of Mexico to the Michigan border. On its way to the
Michigan border, the 100 Line traverses adjacent properties in
Indiana owned by Close Armstrong, LLC, and Randall and
Jaymie Dickson. In dispute are Trunkline’s rights under writ-
ten agreements Trunkline entered into with these

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2 No. 24-1630
landowners’ predecessors in interest more than sixty years
ago that granted the company an easement to construct the
100 Line on the properties. To allow the land to be used for
conservation purposes, the landowners sought to remove this
burden on the properties. With that goal in mind, the land-
owners filed suit in federal district court to define the scope
of the easement as limited to the area immediately surround-
ing the existing pipeline. Trunkline counterclaimed, asserting
that it continued to hold an easement to lay additional pipe-
lines anywhere on the properties.
The district court divided the litigation into two phases. In
the first phase, the district court found that the agreements
granted Trunkline an easement with an unspecified location
over each property, also known as a floating or blanket ease-
ment. That decision granting Trunkline partial summary
judgment is not at issue on appeal. In the second phase, the
district court considered the floating easement rights
Trunkline had not yet exercised, given that Trunkline had to
date exercised only its right to install the 100 Line. The court
concluded that the floating easement rights not yet exercised
were not fixed to a location on the properties. On this basis,
the court again granted Trunkline partial summary judgment.
On appeal, the landowners ask us to certify to the Indiana
Supreme Court the question of whether Indiana law requires
a floating easement to be fixed to a defined location. Alterna-
tively, the landowners ask us to reverse the district court’s
second grant of summary judgment. We decline the landown-
ers’ request for certification because an answer from the Indi-
ana Supreme Court is not necessary to reach this conclusion
with certainty: Trunkline’s remaining, unexercised floating

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No. 24-1630 3
easement rights are not fixed under Indiana law. We therefore
affirm the district court’s grant of summary judgment.
I
The landowners are successors in interest to two parcels
of land in Starke County, Indiana. Both landowners sought to
grant the U.S. Department of Agriculture an easement over
their land as part of the agency’s Agricultural Conservation
Easement Program, a competitive program that allows land-
owners to protect natural and aesthetic resources on their
property in exchange for compensation. As part of the ease-
ment application, the USDA required a title examination,
which revealed identical right-of-way agreements between
the landowners’ predecessors in interest and Trunkline da-
ting back to 1959.
The 1959 agreements provided Trunkline the following
rights:
[A] right of way and easement to construct, lay,
maintain, operate, alter, repair, remove, change
the size of, and replace one or more pipe lines
and appurtenances thereto … for the transpor-
tation of oil, gas, petroleum products or any
other liquids, gases or substances which can be
transported through pipe lines
...
[T]he right to select, change, or alter the routes
of such pipe lines under, upon, over, and
through lands which the undersigned owns or
in which the undersigned has an interest
....

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4 No. 24-1630
[T]he right to lay, construct, maintain, operate,
alter, repair, remove, change the size of, and re-
place at any time or from time to time one or
more additional lines of pipe and appurte-
nances thereto, said additional lines not to nec-
essarily parallel any existing line laid under the
terms of this agreement.
As for the property owners, the agreements allowed them to:
[F]ully use and enjoy said premises except for
the purposes herein granted to [Trunkline] and
provided [the owners] shall not construct or
permit to be constructed any house, structures
or obstructions on or over or that will interfere
with the construction, maintenance or operation
of any pipe line or appurtenances constructed
hereunder and will not change the grade of such
pipe line.
Pursuant to these provisions, Trunkline installed the 100 Line
pipeline in 1960.
After learning of the agreements, the landowners and the
USDA approached Trunkline to clarify the scope of the ease-
ment. According to the landowners, Trunkline’s past state-
ments and conduct fixed the easement to a 66-foot-wide cor-
ridor along the 100 Line. This 66-foot corridor consisted of 33
feet of space on either side of the 100 Line that Trunkline had
historically cleared and maintained for routine surveillance
and inspections of the pipeline. Trunkline maintained, how-
ever, that although it had exercised some of its rights by in-
stalling and maintaining the 100 Line, it continued to hold fu-
ture rights to install additional non-parallel pipelines and to

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No. 24-1630 5
relocate the 100 Line on the properties. Because of Trunkline’s
position, the landowners were not able to move forward with
the USDA’s conservation easement program.
Both landowners filed suit in federal court, seeking a dec-
laration to locate and limit the scope of Trunkline’s easement.
Trunkline counterclaimed, seeking its own declaration that
the burden of its easement was unlimited. The district court
consolidated the cases and divided the litigation into two
phases, resolving both phases with partial summary judg-
ment in Trunkline’s favor.
The first phase addressed the existence of the easement. In
ruling on Trunkline’s motion for summary judgment, the dis-
trict court found that the 1959 agreements were unambiguous
and granted Trunkline a floating easement over each property
at issue. The court also found that the agreements provided
Trunkline the right to lay additional pipelines not necessarily
parallel to the existing 100 Line, and the right to alter the
course of the 100 Line.
The second phase addressed whether the easement rights
were fixed under Indiana law. Presented with cross motions
for summary judgment, the court once more ruled in
Trunkline’s favor. The court found that, although Indiana law
allowed for judicial fixation of an exercised floating easement
right, it did not allow for the fixation of reserved, future, mov-
able, and unexercised rights that had not otherwise been
abandoned or extinguished. In other words, since Trunkline
had not exercised its right to lay additional pipelines, the ease-
ment could not be fixed to a particular location on the land.
The court also declined to fix the width of the corridor sur-
rounding the 100 Line, leaving this as the only issue remain-
ing for a bench trial.

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6 No. 24-1630
The parties ultimately stipulated to the width of the corri-
dor. In doing so, the landowners reserved the right to appeal
the district court’s summary judgment rulings.
On appeal, the landowners seek to reverse the court’s sec-
ond grant of partial summary judgment. We find no basis to
reverse. But before we explain our holding, we address the
landowners’ request for certification to the Indiana Supreme
Court.
II
Our jurisdiction in this case rests on 28 U.S.C. § 1332, and
we are satisfied that diversity among the parties is complete.
As a federal court exercising diversity jurisdiction over claims
arising under state law, our role is to decide the landowner’s
claims as we believe the state’s highest court would. Werner v.
Auto-Owners Ins. Co., 106 F.4th 676, 681 (7th Cir. 2024); Erie R.
Co. v. Tompkins, 304 U.S. 64, 78 (1938). Accordingly, Indiana
provides the substantive law for our examination of
Trunkline’s easement.
The landowners seek to certify to the Indiana Supreme
Court the question of whether Indiana law requires a floating
easement to be fixed to a defined location. The landowners
believe their question merits certification because it deter-
mines their case, there is a dearth of state case law on floating
easements, and the Indiana Supreme Court has not addressed
their exact issue. Moreover, the landowners insist that their
question is one of vital public concern because floating utility
easements similarly burden thousands of properties across
the state. Trunkline, for its part, says the landowners’ request
for certification is untimely and therefore barred. We assess
the timeliness issue first and then the merits of certification.

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No. 24-1630 7
The decision to certify a question of state law to a state su-
preme court “rests in the sound discretion of the federal
court.” Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). It is not
enough for a party seeking certification to argue that there is
a chance the state supreme court might decide the case differ-
ently. State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 672
(7th Cir. 2001). Instead, “[w]e approach the decision to certify
with circumspection,” mindful of the “costs to the litigants
and to the state court which already must contend with a
crowded docket of its own.” Id. at 671.
We consider multiple factors to aid this decision, such as
whether the “case concerns a matter of vital public concern,”
“the issue will likely recur in other cases,” or “when there is a
conflict between intermediate courts of appeal.” Id. at 671–72
(listing factors for determining whether to certify a question).
The timing of the certification request may also be relevant,
especially where the litigants use substantial federal judicial
resources to address state law issues and seek certification
only after obtaining an unfavorable ruling. See Nat’l Cycle, Inc.
v. Savoy Reins. Co., 938 F.2d 61, 64 (7th Cir. 1991). But the most
important consideration is whether we are “genuinely uncer-
tain about a question of state law that is vital to a correct dis-
position of the case.” State Farm, 275 F.3d at 671 (citation omit-
ted).
As we previewed earlier, Trunkline considers the land-
owners’ request for certification untimely. As Trunkline sees
it, the landowners should have sought certification from the
district court, since that was the first federal court to address
the state law question. For support, Trunkline cites this
court’s decision in National Cycle.

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8 No. 24-1630
Although we decline to certify the landowners’ question,
we disagree with Trunkline’s application of National Cycle.
That case involved an issue of attorneys’ fees on which all the
state’s appellate courts, save one, agreed. 938 F.2d at 63–64.
Our court had previously endorsed the approach taken by the
lone state appellate court, predicting that the state supreme
court would eventually agree. Id. But by the time National Cy-
cle was ripe for decision, the issue had become even muddier
in the courts, and the state supreme court had yet to take up
the issue. Id. Confronting the issue once more, we acknowl-
edged there was “no way we c[ould] eliminate the conflict
among the appellate decisions ... without certifying the ques-
tion to the Supreme Court of Illinois.” Id. at 64.
Nonetheless, we thought certification was inappropriate
for two reasons. Id. The first involved the timing of the certi-
fication:
[T]he right time to certify a question is before
the first federal decision on the point. Certifica-
tion eliminates the need to expend judicial re-
sources predicting how another court will de-
cide a question. Once we have invested the time
and effort to make the prediction, the costs have
been sunk.
Id. As for the second reason, our court heavily weighed the
impact further delay would have on the plaintiff considering
the fact that the defendant had not paid the judgment, posted
a supersedeas bond, or paid its lawyers. Id. (“For [the plain-
tiff], collection deferred may be collection denied. As a judg-
ment debtor in default, [the defendant] is not entitled to have
another go in still another court.”).

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No. 24-1630 9
Trunkline interprets the first part of National Cycle’s rea-
soning as a requirement that litigants must make requests for
certification at the district court level or else they lose the op-
portunity to do so on appeal. This interpretation is incorrect.
As explained above, we consider a range of factors in exercis-
ing our discretion to grant certification requests, one of which
is the timing of the request for purposes of gauging the judi-
cial resources spent. Id. at 63–64. Here, the district court has
already expended considerable resources—reaching two
rounds of summary judgment—trying to resolve a state law
question. This is one reason we decline to grant the landown-
ers’ request. But this question of timing does not, by itself,
foreclose the landowners’ opportunity to make a certification
request in the first instance on appeal. See, e.g., Winebow, Inc.
v. Capitol-Husting Co., 867 F.3d 862, 867, 870–71 (7th Cir. 2017),
(certifying a question to the Wisconsin Supreme Court, de-
spite the district court’s prior interpretation of a state statute),
certified question answered and remanded, 914 N.W.2d 631 (Wis.
2018); see also 7th Cir. R. 52(a) (“[T]his court, sua sponte or on
motion of a party, may certify such a question to the state
court....”).
Still, no other factor provides a reason to exercise our dis-
cretion to certify. For one, this is not a case beset by conflicting
state court decisions. See Am. Safety Cas. Ins. Co. v. City of
Waukegan, 678 F.3d 475, 481 (7th Cir. 2012) (“Certification may
be appropriate when decisions of intermediate state courts
conflict, but as we have observed there is just one relevant de-
cision in Illinois.”). Two, while it is true that no case seems to
have addressed the question of whether floating easements
with unexercised, future rights can become fixed, there is suf-
ficient case law on easement rights under Indiana law. From
this case law, we conclude with certainty that Indiana law

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10 No. 24-1630
does not require unexercised, future rights to become fixed.
Recall, the certainty of our conclusion is the most important
consideration in determining whether to grant a certification
request. State Farm, 275 F.3d at 671.
Finally, while today’s decision is no doubt vital to the
landowners’ property interests, it is difficult to conclude that
this infrequently litigated issue impacts public concern. See
Am. Safety, 678 F.3d at 481 (“Certification may be appropriate
when an issue is recurring and important, but the fact that
state courts in Illinois have not had any decisions on this sub-
ject since 1978 implies that it is not often litigated.”).
We therefore decline the landowners’ request for certifica-
tion and turn to the merits of their claims.
III
We review a district court’s grant of summary judgment
de novo. Reid Hosp. & Health Care Servs., Inc. v. Conifer Revenue
Cycle Sols., LLC, 8 F.4th 642, 645 (7th Cir. 2021). “The ordinary
standards for summary judgment remain unchanged on
cross-motions for summary judgment: we construe all facts
and inferences arising from them in favor of the party against
whom the motion under consideration is made.” Blow v. Bi-
jora, Inc., 855 F.3d 793, 797 (7th Cir. 2017). Accordingly, be-
cause we are evaluating the district court’s grant of summary
judgment to Trunkline, we resolve all factual disputes in favor
of the landowners.
An easement grants a person or entity “the right to use an-
other’s land for a specified purpose.” Town of Ellettsville v. De-
Spirito, 111 N.E.3d 987, 990 (Ind. 2018). Indiana recognizes
two types of easements: fixed and floating. Id. “An easement
is fixed if the instrument creating it specifies its location or if

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No. 24-1630 11
the law requires it to be maintained in a specific position.” Id.
An easement is floating if it “is not limited to any specific
part” of the land subject to the easement. Id. (citing Easement,
Black’s Law Dictionary (10th ed. 2014)). Once exercised, a float-
ing easement may become fixed. See, e.g., Panhandle E. Pipe
Line Co. v. Tishner, 699 N.E.2d 731, 734–35, 738 (Ind. Ct. App.
1998), holding modified on other grounds by Fraley v. Minger, 829
N.E.2d 476 (Ind. 2005).
As the district court noted in this case, no Indiana court
has ever fixed unexercised, future rights of use for the place-
ment of a non-parallel pipeline. On appeal, the landowners
offer no such case, either. Instead, they argue that the district
court misinterpreted instances where Indiana courts have
fixed floating pipeline easements.
We see no error. Tishner, like the instant case, involved an
easement for the placement of the 100 Line. Id. at 734. The
pipeline company, Panhandle, sought a permanent injunction
“to prevent the Tishners from doing anything further which
would threaten the integrity of the 100 [L]ine or prevent Pan-
handle from exercising its easement rights.” Id. at 735. The
property owners “counterclaim[ed] for damages to their im-
provements caused by Panhandle’s work on its easement.” Id.
The Indiana Court of Appeals held that trial courts could “de-
termine the extent of an easement of undefined width.” Id. at
738 (citing Rees v. Panhandle E. Pipe Line Co., 452 N.E.2d 405,
410 (Ind. Ct. App. 1983)). However, it expressed this point
only as to the exercise of the easement to place the 100 Line,
which was already in existence at the time. Id. at 734, 738.
The landowners assert that Tishner involved a future right
to install a second pipeline, in addition to the 100 Line, which
the state court also found could only be exercised in a specific

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12 No. 24-1630
location. While it is possible the Tishners’ right-of-way agree-
ment contained such a provision, the state court did not iden-
tify any such provision as relevant to its opinion:
The easement provides, in relevant part, that
Panhandle has the right to lay, maintain, oper-
ate, repair, replace, change the size of, and re-
move a pipeline. The Tishners are entitled to fully
use and enjoy the premises except for the pur-
pose granted to Panhandle. The grant further
provides that the pipe be buried so as not to in-
terfere with the cultivation of the land, and that
the easement holder must pay for damages to
crops and fences caused by the exercise of ease-
ment rights. After obtaining the easement, Pan-
handle’s predecessor placed and maintained a
22” pipeline through the property that the Tish-
ners now own. This line was known as the 100
[L]ine.
699 N.E.2d at 734–35 (emphasis added). Even assuming the
future right to lay a second pipeline was before the state court,
nothing in the Tishner opinion confirms the landowners’ po-
sition that the court fixed any such future, unexercised right.
See generally id. The landowner’s reliance on Rees is likewise
inapposite, as that case involved easements to operate and
maintain four existing natural gas pipelines. See 452 N.E. 2d at
407, 410.
Separately, the landowners argue Trunkline fixed its ease-
ments by practice. They point to Trunkline’s conduct with re-
spect to their own properties since 1960, namely that
Trunkline has only used a 66-foot corridor around the 100
Line, has not altered the 100 Line’s route, and has not installed

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No. 24-1630 13
any additional pipelines. The landowners also cite
Trunkline’s communications with their predecessors in inter-
est, in which Trunkline referenced only the existence of a 66-
foot-wide easement. And they present the testimony of other
property owners across Starke County who assert that
Trunkline has never sought to exercise its easement rights be-
yond the 100 Line corridor on their land.
But in every instance where an Indiana court has relied on
similar evidence to fix a floating easement based on past use,
the right had already been exercised. See DeSpirito, 111 N.E.3d
at 988, 990–91 (relating to a utility easement which appeared
on a subdivision plat); Dudgeon v. Bronson, 64 N.E. 910, 910–
11 (Ind. 1902) (“Where the right to an easement is granted
without giving definite location and description to it, the exer-
cise of the easement in a particular course or manner, with the con-
sent of both parties, renders it fixed and certain.” (emphasis
added) (citation omitted)). In other words, although the evi-
dence the landowners point to could be relevant to the fixa-
tion of an exercised easement, it does not apply to the ease-
ments for future, movable, unexercised rights to lay addi-
tional pipelines at issue here.
The landowners’ theory of fixation by acquiescence simi-
larly fails. Although the doctrine may apply “to settle the lo-
cation of an otherwise poorly defined easement” it “does not
apply where, as here, the question presented is the scope of
the rights granted by an express easement.” Kwolek v. Swick-
ard, 944 N.E.2d 564, 577 (Ind. Ct. App.), transfer denied, 962
N.E.2d 644 (Ind. 2011).
Absent an indication that future, unexercised floating
easements can become fixed under Indiana law, we look to
well-established Indiana law favoring the freedom of

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14 No. 24-1630
contracting. “Indiana courts recognize the freedom of parties
to enter into contracts and, indeed, presume that contracts
represent the freely bargained agreement of the parties.” Hae-
gert v. Univ. of Evansville, 977 N.E.2d 924, 937 (Ind. 2012) (quot-
ing Fresh Cut Inc. v. Fazli, 650 N.E.2d 1126, 1129 (Ind. 1995)).
As recently as 2018, the Indiana Supreme Court in DeSpirito
recognized that its common-law approach “concerning the re-
location of easements ... settles the expectations of property
owners and honors their bargained-for holdings, ensuring
stability in land ownership and property valuation.” 111
N.E.3d at 994.
Here, the parties bargained for easements based on the fu-
ture right to lay additional pipelines and alter their course.
Indiana law recognizes these types of floating easements, in-
cluding for the placement of utilities and gas pipelines. The
landowners do not dispute this. Their only theory of relief—
fixing future, unexercised rights under an easement—does
not exist under Indiana law.
IV
In sum, certification to the Indiana Supreme Court would
not aid our resolution of this case. The parties expressly bar-
gained for a future easement to lay additional pipelines, and
Indiana law recognizes only that exercised easements may be-
come fixed. Because Trunkline has not exercised its future
rights under the agreements at issue, we affirm the district
court’s decision.

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