                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-1730


EQT GATHERING EQUITY, LLC, a Delaware        limited liability
company;    EQT  PRODUCTION  COMPANY,         a    Pennsylvania
corporation,

                 Plaintiffs - Appellees,

           and

EQUITABLE   GATHERING  EQUITY, LLC, a Delaware limited
liability company; 70 EQUITABLE PRODUCTION COMPANY, a
Pennsylvania corporation,

                 Plaintiffs,

           v.

FOUNTAIN PLACE, LLC,

                 Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:09-cv-00069)


Argued:   January 30, 2013                    Decided:   May 21, 2013


Before DAVIS, DIAZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: George Lawson Partain, Logan, West           Virginia, for
Appellant.  David K. Hendrickson, HENDRICKSON        & LONG, PLLC,
Charleston, West Virginia, for Appellees. ON BRIEF: Stephen E.
Hastings, HENDRICKSON & LONG, PLLC, Charleston, West Virginia,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

             The parties to this appeal are two property owners,

each of whom own certain rights to a tract of land located in

Logan County, West Virginia (the “Subject Property”).                   Appellant

Fountain Place, LLC (“Fountain Place”) owns the surface rights

to the Subject Property.          Appellees EQT Gathering Equity, LLC

and EQT Production Company (collectively, “EQT”) own the oil and

gas rights to the Subject Property.

             This controversy requires that we determine which of

the two property owners must bear the cost of relocating and

burying two pipelines on the Subject Property.                     In answering

this question, we apply the analysis set forth by the Supreme

Court of Appeals of West Virginia in Quintain Development, LLC

v. Columbia Natural Resources, Inc., 210 W. Va. 128, 556 S.E.2d

95 (2001).     We first conclude that EQT, as the owner of the oil

and gas rights, was obligated to relocate its pipelines so as

not to interfere with the exercise of the rights held by the

surface     rights    owner,   Fountain       Place.     We     also    conclude,

however,     that    because   the    parties     have    not    identified        a

provision    in     the   instruments    controlling     how     the    costs     of

relocating    the    pipelines   in     the   present    dispute       are   to   be

apportioned, and the surface rights owner sought to benefit from

the change in the status quo by moving dirt to facilitate the

exercise of its surface rights, Fountain Place, as the surface

                                        3
rights owner, bears the cost of relocating the two pipelines.

Therefore, the judgment of the district court is affirmed.

                                        I.

             The long and winding history of this case has been

explored in great detail by the district court and does not

warrant   further      extended     discussion        here.         Accordingly,    our

recitation      of    the   facts   will       be   limited    to     only    the   most

relevant matters.

           Prior       to   1944,   Island      Creek   Coal        Company   (“Island

Creek”) was the owner in fee of various tracts of land in Logan

County, West Virginia, some of which are now at the center of

this dispute. 1

               Over   the    years,    Island         Creek,        through    various

instruments, leased certain property rights to other developers.

Two such instruments are relevant to this appeal.

                                        A.

                                    1944 Lease

             The first instrument relevant here is a 1944 Agreement

of Lease (the “1944 Lease”).               In the 1944 Lease, Island Creek

leased    to     Columbian    Carbon   Company        and     its    successors      and

     1
       At oral argument, Appellant indicated Island Creek is
still in existence but has not been joined in this lawsuit.
Oral Argument at 16:55, EQT Gathering Equity, LLC v. Fountain
Place, LLC, (No. 12-1730), available at http://www.ca4.uscourts.
gov/OAaudiotop.htm.



                                           4
assigns, the oil and gas rights to the Subject Property.                      The

1944       Lease   also   provided   easement   rights   to   the    lessee   to

develop oil and gas operations on the Subject Property.                       In

1968, Columbian Carbon Company dissolved.            By way of a series of

transfers and corporate name changes, EQT ultimately acquired

Columbian Carbon Company’s rights as lessee to the 1944 Lease.

Therefore, EQT obtained the oil and gas rights as well as the

corresponding easement rights to the Subject Property.                 The 1944

Lease contains three provisions germane to our discussion here.

               The first provision (the “Burying Provision”) places

certain limitations and obligations on the lessee.                  The Burying

Provision is found in paragraph 8 of the 1944 Lease, and reads:

            [Lessee] shall not drill any well within two
       hundred (200) feet of any of the principal buildings
       upon the leased premises. All pipe lines except those
       used to conduct gas and water for drilling engines
       shall be buried below plow depth in cultivated land
       and at a safe depth when crossing under railroads,
       highways and haulroads. In laying pipe lines [Lessee]
       shall protect growing crops and fences and if any
       injury shall be done thereto [Lessee] shall pay for
       the same as well as any injury or damage caused by any
       other acts of [Lessee] on the leased premises.

J.A. 68–69. 2

               The second provision (the “Subordination Provision”),

found in paragraph 13, indicates that the lessee receives oil


       2
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                        5
and   gas   rights     “subject    and    subordinate    to    the   business     of

mining and shipping coal . . . .”             J.A. 73.

             The third provision (the “Cost Allocation Provision”),

found in paragraph 18, provides for the allocation of certain

costs among Island Creek and the lessee.              Paragraph 18 begins by

establishing shared ownership of the oil and gas produced on the

Subject Property among Island Creek and the lessee.                      Paragraph

18 then provides for cost allocation, stating, in relevant part:

      ISLAND CREEK shall, with respect to its sixty-two
      (62%) per cent. undivided interest therein, pay to
      [Lessee] sixty-two (62%) per cent. of the total cost
      of prospecting, drilling and operating for oil and gas
      on the leased premises under the provisions of this
      lease . . . and transporting the same on the leased
      premises including . . . the construction, installing,
      operating and maintaining on the leased premises of
      such pipe lines . . . as [Lessee] may deem necessary
      for such purposes.   Included in the total cost shall
      be an arbitrary charge of six and five-tenths (6.5%)
      per cent thereof . . . .

                Such total cost shall include the cost of
      performing the obligations of [Lessee] contained in
      Paragraphs 7, 8, 10, 11, 12 and 15 hereof.

J.A. 77–78.

                                     B.

                                  1965 Deed

             The second instrument of relevance here is a 1965 Deed

in which Island Creek conveyed to Georgia-Pacific Corporation

and   its   successors     and     assigns,    the   surface    rights     to     the

Subject     Property    (the   “1965      Deed”).    Following       a   series    of


                                          6
conveyances by Georgia-Pacific Corporation and its successors,

on February 8, 2001, the rights under the 1965 Deed were sold to

Fountain   Place. 3     The   1965   Deed   states,   in   part,   that   the

conveyance is subject to “[t]he right, title and interest of

[EQT’s predecessor in interest] . . . under agreements of lease

dated April 13, 1944,” that is, the 1944 Lease.            J.A. 98.

                                     C.

                              The Pipelines

           Pursuant to the 1944 Lease, EQT operates two pipelines

on the Subject Property –– both of which, at various points, run

across surfaces owned by Fountain Place.          The two pipelines are

identified by the following designations: DC-4 and BR-866/1875.

                                     1.

                              DC-4 Pipeline

           By   March     1998,   Fountain    Place’s      predecessor    had

deposited an unknown amount of fill dirt over a portion of the

DC-4 pipeline.        By November 21, 2001, Fountain Place had also


     3
       We need not reiterate the chains of title for the 1944
Lease and 1965 Deed, which were exhaustively covered by the
district court.   For our purposes, we need only recognize two
relevant facts.    First, EQT and Fountain Place possess the
rights granted in the 1944 Lease (oil and gas rights) and 1965
Deed (surface rights), respectively. Second, although the
parties do not identify precisely when the entity now known as
EQT first acquired the oil and gas rights under the 1944 Lease,
it is clear EQT acquired such rights prior to Fountain Place’s
acquisition of the 1965 Deed on February 8, 2001.



                                      7
deposited an additional unknown amount of fill dirt over the DC-

4 pipeline.         In total, approximately “30 feet” of fill dirt

buried the relevant portion of the DC-4 pipeline.                                 J.A. 518.

Following years of negotiation between EQT and Fountain Place

over the dirt covering the DC-4 pipeline, EQT unilaterally moved

the   pipeline     to   a    safer   location.           The    relocation           cost   EQT

$158,141.80.

                                           2.

                               BR-866/1875 Pipeline

            In 2008, Fountain Place desired to install a cellular

phone   transmission         tower   on    the    Subject       Property.            Fountain

Place discovered the BR-866/1875 pipeline ran across the surface

of    the   Subject     Property      at    certain       locations         ––    locations

Fountain     Place      intended      to    use    as     pathways         to     transport

materials and equipment for the construction of the cell tower

(hereinafter       referred     to    as   the     “Pathway”).             As    a    result,

Fountain Place        excavated      underneath         the    BR-866/1875        pipeline.

The   parties      dispute    whether      the    excavation         was    completed        at

EQT’s   direction,      or    was    carried      out    on    Fountain         Place’s     own

volition.          Nonetheless,       it    is     clear       the     excavation           was

precipitated by Fountain Place’s desire to traverse the Pathway.

According     to     EQT,    the     excavation         rendered      the       BR-866/1875




                                            8
pipeline unsafe, and EQT estimated the cost for burying the BR-

866/1875 pipeline at the Pathway location to be $45,000.00. 4

                                            D.

                                  Procedural History

                  On   January   26,    2009,       EQT   filed     the   present     action

against       Fountain      Place      in   the       Southern       District    of    West

Virginia.          EQT’s complaint alleged six causes of action.                         EQT

sought a declaratory judgment holding Fountain Place liable for

the cost incurred by EQT for relocating the DC-4 pipeline, an

injunction          enjoining    Fountain       Place       from    further     excavating

under       the    BR-866/1875      pipeline,         and    a    declaratory    judgment

holding       Fountain      Place      liable       for     the    prospective    cost    of

burying the BR-866/1875 pipeline.                         The complaint also stated

tort causes of action for negligence, trespass, and intentional

conduct.

               In response, Fountain Place filed its answer and a

counterclaim           against      EQT.            Fountain      Place    denied     EQT’s

allegations concerning the DC-4 pipeline, sought an injunction

compelling EQT to bury the BR-866/1875 pipeline under Fountain




        4
       In their Response Brief on appeal, EQT indicated the BR-
866/1875 pipeline has since been either relocated or buried at
the disputed locations.    But EQT did not indicate when this
activity occurred or the actual cost.



                                                9
Place’s Pathway, and sought a declaration that EQT was solely

responsible for the burial costs.

             The    parties      then   filed     cross      motions      for      summary

judgment with regard to the injunctive and declaratory claims

surrounding the BR-866/1875 pipeline.

             On March 5, 2010, given that there was no indication

Fountain Place would further excavate under the pipeline, the

district court dismissed, as moot, the parties’ requests for

injunctive    relief.         The   district      court      granted         EQT   summary

judgment on its claim for declaratory relief with respect to the

BR-866/1875 pipeline.            The district court based its ruling on

the principles set forth by the Supreme Court of Appeals of West

Virginia     in    Quintain      Development,          LLC   v.    Columbia        Natural

Resources, Inc., 210 W. Va. 128, 556 S.E.2d 95 (2001).                                 The

district court concluded that because Fountain Place upset the

status quo surrounding the BR-866/1875 pipeline, Fountain Place

was   responsible     for     paying      for    the    cost      of   the    pipeline’s

relocation.

             On December 14, 2010, Fountain Place filed a motion

for summary judgment on EQT’s remaining causes of action.                              EQT

responded by filing its own motion for summary judgment on its

claim for declaratory relief with respect to the DC-4 pipeline.

             On    March    3,    2011,    the    district        court      denied   the

parties’ cross motions for summary judgment.

                                          10
             On November 15, 2011, the case proceeded to trial to

resolve questions of fact over when, and by whom, fill dirt was

deposited on top of the DC-4 pipeline.                  The jury       returned a

verdict    indicating    Fountain      Place    and     its    predecessor      were

responsible for depositing dirt on top of the DC-4 pipeline.

             Following   the   jury     trial,    Fountain       Place   filed    a

motion for judgment as a matter of law pursuant to Rule 50 of

the Federal Rules of Civil Procedure.                 In its motion, Fountain

Place argued the facts found by the jury indicated that EQT’s

declaratory action with respect to the DC-4 pipeline and various

tort causes of action were barred by West Virginia’s applicable

statute of limitations.

           On    March   15,   2012,     the    district       court   entered    a

Memorandum    Opinion    and   Order    on   Fountain     Place’s      motion    for

judgment as a matter of law and entered an order of judgment.

In   its   Memorandum     Opinion      and     Order,    the    district     court

dismissed EQT’s tort claims as time-barred, pursuant to West

Virginia’s two-year statute of limitations for tortious damage

to property.     See W. Va. Code § 55-2-12(a).                 But the district

court also concluded EQT’s declaratory judgment cause of action

with respect to the DC-4 pipeline was not time-barred, because

it was subject to West Virginia’s 10-year statute of limitations

for actions to recover on a contract.             See W. Va. Code § 55-2-6.

Applying the principles found in Quintain, the district court

                                       11
then upheld the jury verdict in favor of EQT with respect to

EQT’s   request   for   a   declaration     that       Fountain   Place   be   held

responsible for the cost of relocating the DC-4 pipeline.

           The district court’s judgment order incorporated two

of the district court’s prior decisions: (1) the March 5, 2010

Memorandum Opinion and Order granting summary judgment in favor

of EQT on EQT’s claim for declaratory judgment with respect to

the BR-866/1875 pipeline; and (2) the March 15, 2012 Memorandum

Opinion and Order denying judgment as a matter of law in favor

of Fountain Place on EQT’s claim for declaratory judgment with

respect to the DC-4 pipeline.

           Fountain     Place   then    filed      a    motion    to   amend    the

court’s Memorandum Opinion and Order pursuant to Rule 59(e) of

the Federal Rules of Civil Procedure.                  Fountain Place’s motion

challenged,   inter     alia,   the    district        court’s    application    of

Quintain and West Virginia’s 10-year statute of limitations to

EQT’s declaratory causes of action, in what was essentially a

motion for reconsideration.            Subsequently, the district court

denied Fountain Place’s motion to amend.

           To summarize, the district court concluded:

  •   Injunctive relief was unnecessary because the safety and

      structural integrity of the BR-866/1875 pipeline were no

      longer in jeopardy;



                                       12
     •   Fountain    Place   was     responsible   for     paying    the   cost   of

         relocating the DC-4 and BR-866/1875 pipelines pursuant to

         the Supreme Court of Appeals’ decision in Quintain;

     •   EQT’s declaratory cause of action with respect to the DC-4

         pipeline, requiring Fountain Place to pay for the cost of

         relocation, was subject to West Virginia’s 10-year statute

          of limitations for actions to recover on a contract, W. Va.

          Code § 55-2-6, and thus not time-barred;

     •    EQT’s tort causes of action were subject to West Virginia’s

         two-year    statute    of   limitations     for   tortious    damage     to

         property, W. Va. Code § 55-2-12(a), and thus time-barred.

               Fountain Place then timely filed the present appeal,

largely reiterating the arguments made in its Rule 50 motion.

In       essence,    Fountain   Place    challenges      the   district    court’s

declarations         that   Fountain    Place   must   pay     for   the   cost   of

relocating the two pipelines.

               The   district   court    possessed     diversity     jurisdiction

over this matter pursuant to 28 U.S.C. § 1332. 5                Additionally, we




         5
        Fountain Place is a West Virginia limited liability
company with its principal place of business in West Virginia.
The entities collectively referred to as “EQT” consist of a
Delaware    limited  liability   company   and  a  Pennsylvania
corporation    with their   principal   place  of business   in
Pennsylvania.



                                         13
possess    jurisdiction    over    this      appeal    pursuant      to    28   U.S.C.

§ 1291.

                                        II.

            We review grants of summary judgment and denials of

judgment as a matter of law de novo.                  See PBM Prods., LLC v.

Mead Johnson & Co., 639 F.3d 111, 119–20 (4th Cir. 2011).

            In reviewing a grant of summary judgment, we view all

the facts and reasonable inferences drawn therefrom in the light

most favorable to the non-moving party.                    Id. at 119.          Summary

judgment    is   appropriate      if    there   is    no     genuine      dispute   of

material fact and the moving party is entitled to judgment as a

matter of law.     Fed. R. Civ. P. 56(a).

            “A judgment as a matter of law is proper when, without

weighing the credibility of the evidence, there can be but one

reasonable conclusion as to the proper judgment.”                         PBM Prods.,

639 F.3d at 120 (internal quotation marks omitted).

            Because this case comes before us by way of federal

diversity   jurisdiction,      “our     role    is    to   apply     the    governing

state law, or, if necessary, predict how the state’s highest

court would rule on an unsettled issue.”                   Horace Mann Ins. Co.

v. Gen. Star Nat. Ins. Co., 514 F.3d 327, 329 (4th Cir. 2008).

“Accordingly,    where    there    is    West   Virginia       law     addressing    a

particular question, we will follow it.”               Id.



                                        14
                                          III.

          In      Quintain      Development,           LLC    v.   Columbia     Natural

Resources,   Inc.,       210   W.   Va.    128,    556       S.E.2d   95    (2001),   the

Supreme   Court     of    Appeals     of        West    Virginia      set    forth    the

framework for courts to follow in resolving disputes such as the

one presently before the court.

          In Quintain, Columbia Natural Resources, Inc. (“CNR”)

owned a natural gas pipeline.                   The pipeline ran over various

tracts of land pursuant to right-of-way easements granted by the

surface and coal owners of those tracts to CNR’s predecessor in

interest in 1914.          Id. at 97–98.           In 1995 and 1996, Quintain

Development, LLC (“Quintain”) obtained, by a number of leases,

the surface mining rights to the various tracts.                       Id. at 98.      In

order to exercise its surface mining rights, Quintain brought an

action seeking declaratory and injunctive relief against CNR to

compel CNR to relocate its pipeline at CNR’s expense.                            Id. at

98–99.

          The Supreme Court of Appeals of West Virginia first

considered whether CNR, under its right-of-way easements, was

obligated to relocate its pipeline to accommodate the surface

rights holder.      The Supreme Court of Appeals found provisions in

the right–of-way easements clearly indicated that the parties

had intended the easements would not interfere with the mining

of coal, regardless of the mining method employed:

                                           15
     The   landowners   clearly   wished    to  reserve   for
     themselves the right to remove coal from their
     respective properties.   CNR’s predecessor in interest
     agreed that its pipeline would not interfere with the
     removal of coal.     Clearly the parties contemplated
     that if the pipeline interfered with the removal of
     coal, it would be relocated.        This fact does not
     change simply because the method of mining the coal
     may have changed.      The action which the parties
     contemplated, the possibility of relocating a pipeline
     that interfered with the mining of coal, remains the
     same.    Consequently, . . . under the right-of-way
     deeds for the [property at issue], CNR was required to
     relocate its pipeline from those properties to the
     extent it interfered with the removal of coal there.

Id. at 101.

           Finding CNR obligated to relocate its pipeline, the

Supreme Court of Appeals then set about to determine which party

was obligated to pay for the cost of relocating the pipeline.

Id. at 101.    In making this determination, the Supreme Court of

Appeals performed a two-part inquiry.            First, it turned to the

language of the right-of-way easements to determine whether they

contemplated   who    should   bear   the    cost   for   such   relocation.

Second,   finding    the   language   of   the   easements   silent   on   the

issue, the Supreme Court of Appeals turned to the principle that

the party benefiting from the change to the status quo should

bear the cost of the change, as espoused in Minard Run Oil Co.

v. Pennzoil Co., 419 Pa. 334, 336, 214 A.2d 234, 235 (1965).                It

is this framework that we apply to the present case.




                                      16
                                          A.

           Under Quintain, we begin by asking whether the 1944

Lease   obligates     EQT    to   relocate     its   pipeline     to    accommodate

Fountain Place, the surface rights holder.                     556 S.E.2d at 101.

We find that it does.

           Two provisions in the 1944 Lease reveal an intent by

the parties to the 1944 Lease for the operator of the oil and

gas pipelines not to interfere with the surface activities on

the Subject Property: (1) the Burying Provision; and (2) the

Subordination Provision.            The Burying Provision reveals a clear

intent for the pipelines to be buried and to not interfere with

various   surface      activities,          such     as   farming,           means    of

transportation,       and     the        maintenance      of     fences.             The

Subordination   Provision         also    provides     that     the    oil    and    gas

rights holder receives those rights “subject and subordinate to

the business of mining and shipping coal . . . .”                             J.A. 73.

From these two provisions, it is a short inferential step to

conclude the    oil    and    gas    rights    granted    to     Columbian      Carbon

Company, and thus to EQT, were intended not to interfere with

the surface rights of Island Creek and its assigns, that is,

Fountain Place.       Accordingly, EQT is obligated to relocate its

pipelines to the extent they interfere with Fountain Place’s

exercise of its surface rights.



                                          17
                                               B.

            Under the next step in the Quintain analysis, we must

now determine which party is obligated to pay for the cost of

the pipeline relocation.             556 S.E.2d at 101.

                                               1.

            As the Quintain framework dictates, we first turn to

the language of the 1944 Lease.                       See id.; see also Equitable

Gathering    Equity,       LLC    v.    Dynamic           Energy,    Inc.,   No.     5:07-cv-

00725, 2009 WL 37186, at *3 (S.D.W. Va. Jan. 7, 2009) (“First,

as in Quintain, the granting instruments in the instant case

state that the coal estate is to be the dominant estate, but are

silent   regarding       who     should     bear      the     cost    of   relocating     the

pipelines.”).

            Fountain       Place       argues       that     the     affirmative     command

given the oil and gas rights owner in the Burying Provision

implicitly      requires       EQT     to   bear      the    cost     of   relocating     its

pipelines.        See    Appellant’s        Br.       29    (“[T]he     District     Court’s

legal conclusion that the [1944 Lease] does not contain a cost

shifting provision . . . is manifestly at odds with the specific

provision    in    the     lease        that        the    Lessee     ‘shall’      bury   all

pipelines under ‘haulroads.’”).                      As noted above, the Burying

Provision places an obligation on EQT to bury its pipelines to

the extent they interfere with the exercise of surface rights by

the   surface     rights    owner.          The      Burying       Provision    is   silent,

                                               18
however, as to how the costs of complying with such obligations

should be apportioned between the oil and gas rights owner and

any subsequent surface rights owner. 6

            Accordingly, because the parties have not identified a

provision    in     the    instruments       controlling      how      the    costs     of

relocating   the     pipelines        in    the    present    dispute        are   to   be

apportioned, we must continue to the next step in the Quintain

analysis.

                                            2.

            Given     that      the        parties     have      not     invoked        any

controlling provision under the relevant instruments to resolve

this dispute, pursuant to Quintain we must impose the cost of

relocating    the     DC-4     pipeline          and   burying     the    BR-866/1875

pipeline on the party who desired to alter the status quo for

its own benefit.          See 556 S.E.2d at 101.          Here, the DC-4 and BR-

     6
       Fountain Place did not argue below in the district court,
in brief on appeal, or at oral argument that the Cost Allocation
Provision applies to the present dispute.         See J.A. 398
(“Fountain Place has identified no provision in the [1944 Lease]
or elsewhere in the chain of title that would impose upon
plaintiffs the relocation or burial costs.”).       We therefore
consider any such argument waived.    See Corti v. Storage Tech.
Corp., 304 F.3d 336, 343 (4th Cir. 2002) (Niemeyer, J.,
concurring) (collecting cases illustrating that “when a party to
a civil action fails to raise a point at trial, that party
waives review of the issue unless there are exceptional or
extraordinary circumstances justifying review”); United States
v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004) (“It is a
well settled rule that contentions not raised in the argument
section of the opening brief are abandoned.”).



                                            19
866/1875       pipelines        were       in     existence        when    Fountain           Place

purchased      the      surface      rights        under     the    1965    Deed        in    2001.

Therefore, the initial act of placing the pipelines could not

have       altered      the   status       quo     as    between    the     parties.              The

question      then      becomes      whether           subsequent    acts,      such         as   the

placement or removal of dirt, altered the status quo for the

benefit of one of the parties. 7

                                                  a.

                                          DC-4 Pipeline

               With     respect      to     the    DC-4      pipeline,     the     jury       found

Fountain Place deposited fill dirt on top of the DC-4 pipeline

as late as November 21, 2001.                          Fountain Place sought to alter

the status quo for its own benefit –- Fountain Place sought to

change       the     nature     of   the        Subject      Property      where        the       DC-4

pipeline       was      located      in    order        to   conduct      its     own    surface

activities         in    that     area.           Although     there       were    incidental

benefits to both EQT and Fountain Place in safely moving the DC-

4 pipeline away from Fountain Place’s surface activities and


       7
       Upon review, we agree with the district court’s conclusion
that Fountain Place’s evidence that EQT may have first moved the
BR-866/1875 pipeline was too speculative, incomplete, and
contradictory to create a genuine dispute of material fact.
J.A. 395–96 n.14 (“Fountain Place has failed, as a matter of
law, to offer more than a scintilla of evidence that the
disputed pipeline section was moved at any time following its
original placement, whenever that may have occurred.”).



                                                  20
alleviating the danger created by Fountain Place, it is Fountain

Place who directly benefitted from the change in the status quo.

Accordingly,       the     district        court     correctly         concluded    that

Fountain Place must bear the cost of the relocation of the DC-4

pipeline.

                                            b.

                               BR-866/1875 Pipeline

            With     respect        to     the     BR-866/1875         pipeline,       our

conclusion is the same.            Even if, as Fountain Place claims, EQT

replaced portions of the BR-866/1875 pipeline in 2001, and again

in 2007, after Fountain Place purchased the surface rights under

the 1965 Deed on February 8, 2001, Fountain Place did not seek

to use the Pathways over which the BR-866/1875 pipeline ran for

the    construction      of   a   cell     tower    until      2008.     The    pre-2008

status quo was entirely sufficient for EQT.                            Rather, it was

Fountain    Place    who      sought     the     change   in    the    status    quo    by

excavating under the BR-866/1875 pipeline in order to install a

cell tower.    Accordingly, the district court correctly concluded

that Fountain Place must bear the cost of the burial of the BR-

866/1875 pipeline.

                                           IV.

            In sum, we find that under the 1944 Lease, EQT is

obligated to relocate its pipelines to the extent they interfere

with    Fountain    Place’s       proper    exercise      of    its    surface     rights

                                            21
under the 1965 Deed.              Fountain Place, however, was aware or

should have been aware of the DC-4 and BR-866/1875 pipelines

when       it   purchased   its   surface       rights   in   2001.     After    its

purchase in 2001, Fountain Place sought to alter the status quo,

and     benefit     from    the   change        in   circumstances.      Thus,   in

accordance with Quintain Development, LLC v. Columbia Natural

Resources, Inc., 210 W. Va. 128, 556 S.E.2d 95 (2001), Fountain

Place       must   bear     the   concomitant        costs    of   relocating    the

pipelines. 8

                Therefore, the judgment of the district court is

                                                                         AFFIRMED.




       8
       We have considered each of the other issues raised by the
parties in this case on appeal and find them to be without
merit.




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