Kidder Law Firm Wins Herbicide Dispute in Harrison County

By: Kidder Law Firm

Kidder Law Firm recently won a victory for landowners in the Harrison County, Ohio Court of Common Pleas in the case of Craig D. Corder, et al. v. Ohio Edison Company (Case No. CVH 2017-0057). Sitting by assignment, Judge Linton D. Lewis, Jr. held that a 1948 power line easement does not give Ohio Edison the right to spray herbicides on the landowners’ property.

Central to the dispute was language in the easement giving Ohio Edison the right to “trim, cut and remove” vegetation that threatens its power lines. Edison contended that this language also gave it the right to use herbicides. The landowners disagreed.

Judge Lewis, finding for the landowners, held that, if “to remove” were a standalone right, “then the words ‘trim and cut’ become superfluous.” Moreover, “[w]ere ‘remove’ to be a standalone third right, then it could reasonably be argued that [Ohio Edison] need not remove what it cuts. [Edison] could cut down a seventy-foot tree and the landowner would be responsible for its disposal. It is hard to imagine a landowner in 1948 or now, who would agree to allow a utility company to cut down a tree to protect its utility lines but not also be required to remove the same.”

Regarding Ohio Edison’s argument that the word “remove” grants it an unfettered right to use any method it deems necessary to eliminate vegetation, Judge Lewis reasoned that “[s]uch a right would include merely burning the same all along the easement boundary. Again, such a right could not have been the intention of the drafters of the easements herein.”

In the end, “[t]he plain language of the [easements] limits the maintenance of the vegetation on the easements to ‘trim, cut and remove…’ Such language does not include the use of herbicides.”

Read the full opinion here.