Some of my astute readers may well wonder the connection between easements and herbicides. You’ll want to gird your loins for the fascinating journey.
Ohio Edison holds easements for the installation and maintenance of electrical transmission lines and structures in Harrison County, Ohio. First granted in 1948, the easements allow Oh Ed to erect and maintain the easement areas, and also grant to Oh Ed the right to “trim, cut and remove . . . trees, limbs, underbrush or other obstructions.”
70 years later, Oh Ed notified Craig Corder, Jackie Corder, and Scott Corder that herbicides would be used to control vegetation growth in the easement area. This action, explained Oh Ed, was part of its Transmission Vegetation Management Program.
The Corders responded with a lawsuit seeking a declaratory judgment that Oh Ed did not have the right to use herbicides to manage vegetation.
The trial court dismissed the case for lack of jurisdiction. The intermediate Appellate Court determined that the Easement Agreements were ambiguous, and remanded the case back to the trial court to resolve the ambiguity.
Looking at this again as instructed by the Appellate Court, the trial court agreed that the easement language is ambiguous. So it awarded judgment to the Corders.
Once again, the case bounced up to the intermediate Appellate Court. After confirming (again) the ambiguity in the Easement Agreement, the Court decided that the Easement language does not allow Oh Ed to remove vegetation by any means it chooses.
So Oh Ed appealed the issue to the Supreme Court of Ohio. Citing a fictitious Will clause leaving the testator’s estate to “my mother, Jane and Sally” and the fabricated provision “He teaches French, German, Italian and Spanish,” the Supreme Court undertook a fun exercise interpreting conjunctive phrases, appositives, and Oxford commas.
Fun for some of us. But likely less than all of us.
The Supremes drill down into the word “remove.” Deciding that Oh Ed was granted the right to “remove” vegetation was obvious. From there, the Supremes decided that the method of removal should be defined broadly to include elimination and eradication, and even just getting rid of an object.
The Easement language is expansive; there are no limits, inhibitions, or prohibitions. If herbicides will remove vegetation through destruction, then that method is permitted.
Ohio Edison wins; Corders lose. See Corder v Ohio Edison Company; Slip Opinion 2024-Ohio-5432; Ohio Supreme Court; November 20, 2024: https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2024/2024-Ohio-5432.pdf.
Questions / Issues:
1. Herbicides. This Court is focused on the singular word “remove.” But do herbicides remove vegetation? Or instead, just prevent or inhibit regrowth?
2. Down This Path We Go. Still focused on the right of Oh Ed to “remove,” would this Court grant Oh Ed the right to cause removal by controlled burn? Explosion / implosion? Napalm? Death ray? Aren’t all of those used to “remove” an obstacle?
3. Grammar Nerds Unite. There’s a well-written treatise in this Opinion for grammar nerds. This may be required reading for future law students. Grammarians, too.
Stuart A. Lautin, Esq.*
* Board Certified, Commercial and Residential Real Estate Law, Texas Board of Legal Specialization
Licensed
in the States of Texas and New York
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