Corrigan v. Illuminating Co.

[Cite as Corrigan v. Illum. Co., 122 Ohio St.3d 265, 2009-Ohio-2524.]
CORRIGAN ET AL., APPELLEES, v. ILLUMINATING COMPANY, APPELLANT.
[Cite as Corrigan v. Illum. Co., 122 Ohio St.3d 265, 2009-Ohio-2524.]
Public Utilities Commission has exclusive jurisdiction over vegetation-removal
dispute between landowner and utility company.
(No. 2008-0708 — Submitted February 3, 2009 — Decided June 4, 2009.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 89402, 175 Ohio App.3d 360, 2008-Ohio-684.
__________________
LANZINGER, J.
I
{¶ 1} At first glance, this case appears to concern the fate of a single
tree. The larger issue, however, is who controls that fate – the court of common
pleas or the Public Utilities Commission of Ohio.
{¶ 2} Appellant, the Illuminating Company (“the company”), is a public
utility that provides electric service. In order to provide safe and reliable delivery
of electricity, the company must maintain its easements to keep vegetation from
coming in contact with electricity lines. On July 2, 2004, appellees, Mary-Martha
and Dennis Corrigan, received a letter from the company stating that it was going
to remove the silver maple located within its easement on the Corrigans’ property
because the tree had the potential to interfere with the company’s 138,000-volt
distribution line.
{¶ 3} To prevent the removal of their tree, the Corrigans filed a
complaint for injunctive relief against the company in the Cuyahoga County
Court of Common Pleas on July 9, 2004. The trial court granted the Corrigans a
temporary restraining order that enjoined the company from clear-cutting “trees,
shrubs, and other growth which exceed 10 feet or have the potential of reaching
SUPREME COURT OF OHIO
10 feet in height, located within its easement relating to any property on Outlook
Drive [the street on which the Corrigans live].”
{¶ 4} The next week, the trial court held a hearing on the motion for
preliminary injunction. In its July 29, 2004 order granting a preliminary
injunction, the trial court found: “[The company has begun] a ‘clear cut’ policy to
deal with vegetation maintenance on its transmission line easements. Such an
approach may be a reasonable exercise of [the company’s] authority, but such
authority is not unbridled nor is it arbitrary.” It went on to find that evidence had
been presented to show that the silver maple did not interfere or threaten to
interfere with the transmission lines, and it set a date for a permanent-injunction
hearing.
{¶ 5} The company filed a motion to reconsider and a motion to dismiss,
arguing in both that the trial court lacked subject-matter jurisdiction because the
case fell within the exclusive jurisdiction of the Public Utilities Commission of
Ohio (“PUCO”). The court denied these motions. At the end of August 2004, the
trial court held a hearing on the complaint for permanent injunctive relief. Two
years and four months later, the trial court granted the Corrigans a permanent
injunction to enjoin the company from removing the silver maple.
{¶ 6} The company appealed and asserted three assignments of error: (1)
the trial court lacked subject-matter jurisdiction, (2) the grant of a permanent
injunction was an abuse of discretion, and (3) the findings of facts were against
the manifest weight of the evidence. The Eighth District Court of Appeals
affirmed. It held that the trial court did not lack subject-matter jurisdiction,
because the removal of trees within an easement does not require PUCO’s
administrative expertise and the dispute centered on the interpretation of the
easement at issue. Corrigan v. Illum. Co., 175 Ohio App.3d 360, 2008-Ohio-684,
887 N.E.2d 363, ¶ 10. In looking at the language of the easement, the appellate
court determined that the company’s right to remove trees is limited. Id. at ¶ 20.
2
January Term, 2009
After noting that (1) the utility had not received a single citation or experienced
any problems with the FAA or Army Corps of Engineers as a result of the tree,
(2) the Corrigans had personally paid to have the tree pruned and to have a slow-
growth hormone implanted, and (3) the community had not experienced any
service interruptions due to the Corrigans’ tree, the appellate court concluded that
the tree does not pose a possible threat to the transmission lines. Id. at ¶ 24-32.
{¶ 7} We accepted the company’s discretionary appeal.
II
{¶ 8} The General Assembly enacted R.C. 4901.01 et seq. to regulate the
business activities of public utilities and created PUCO to administer and enforce
these provisions. Kazmaier Supermarket, Inc. v. Toledo Edison Co. (1991), 61
Ohio St.3d 147, 150, 573 N.E.2d 655. R.C. 4905.26 provides that PUCO shall
hear complaints filed against public utilities alleging that “any rate, fare, charge,
toll, rental, schedule, classification, or service, or any joint rate, fare, charge, toll,
rental, schedule, classification, or service rendered, charged, demanded, exacted,
or proposed to be rendered, charged, demanded, or exacted, is in any respect
unjust, unreasonable, unjustly discriminatory, unjustly preferential, or in violation
of law, or that any regulation, measurement, or practice affecting or relating to
any service furnished by the public utility, or in connection with such service, is,
or will be, in any respect unreasonable, unjust, insufficient, unjustly
discriminatory, or unjustly preferential.” This “ ‘jurisdiction specifically
conferred by statute upon the Public Utilities Commission over public utilities of
the state * * * is so complete, comprehensive and adequate as to warrant the
conclusion that it is likewise exclusive.’ ” State ex rel. N. Ohio Tel. Co. v. Winter
(1970), 23 Ohio St.2d 6, 9, 52 O.O.2d 29, 260 N.E.2d 827, quoting State ex rel.
Ohio Bell Tel. Co. v. Cuyahoga Cty. Court of Common Pleas (1934), 128 Ohio St.
553, 557, 1 O.O. 99, 192 N.E. 787; see also Kazmaier, 61 Ohio St.3d at 152, 573
N.E.2d 655.
3
SUPREME COURT OF OHIO
{¶ 9} The broad jurisdiction of PUCO over service-related matters does
not affect “the basic jurisdiction of the court of common pleas * * * in other areas
of possible claims against utilities, including pure tort and contract claims.” State
ex rel. Ohio Edison Co. v. Shaker (1994), 68 Ohio St.3d 209, 211, 625 N.E.2d
608. Consequently, we must determine whether the claims raised by the
Corrigans in their complaint are within PUCO’s exclusive jurisdiction or are pure
tort and contract claims that do not require a consideration of statutes and
regulations administered and enforced by the commission.
{¶ 10} In making this determination, we are not limited by the allegations
in the complaint. State ex rel. Columbia Gas of Ohio, Inc. v. Henson, 102 Ohio
St.3d 349, 2004-Ohio-3208, 810 N.E.2d 953, ¶ 19. Rather, we must review the
substance of the claims to determine if service-related issues are involved. Id. at ¶
20-21. “In other words, ‘casting the allegations in the complaint to sound in tort
or contract is not sufficient to confer jurisdiction upon a trial court’ when the
basic claim is one that the commission has exclusive jurisdiction to resolve.”
State ex rel. Illum. Co. v. Cuyahoga Cty. Court of Common Pleas, 97 Ohio St.3d
69, 2002-Ohio-5312, 776 N.E.2d 92, ¶ 21, quoting Higgins v. Columbia Gas of
Ohio, Inc. (2000), 136 Ohio App. 3d 198, 202, 736 N.E.2d 92.
{¶ 11} This court recently adopted a two-part test from Pacific Indemn.
Ins. Co. v. Illum. Co., Cuyahoga App. No. 82074, 2003-Ohio-3954, ¶ 15, to
determine whether PUCO has exclusive jurisdiction over an action: “ ‘First, is
PUCO’s administrative expertise required to resolve the issue in dispute? Second,
does the act complained of constitute a practice normally authorized by the
utility?’
{¶ 12} “If the answer to either question is in the negative, the claim is not
within PUCO’s exclusive jurisdiction.” Allstate Ins. Co. v. Cleveland Elec. Illum.
Co., 119 Ohio St.3d 301, 2008-Ohio-3917, 893 N.E.2d 824, ¶ 12-13.
4
January Term, 2009
{¶ 13} Although Allstate was decided after the appellate decision in this
case, the Eighth District applied Pacific Indemn. and determined that the
complaint did not fall within PUCO’s exclusive jurisdiction: “Here, the act
complained of, namely, removing trees within the Illuminating Company’s
easement, does not require PUCO’s administrative expertise to resolve the
dispute. What is required is an interpretation of the contractual language of the
quitclaim deed establishing the easement at issue * * *.” 175 Ohio App.3d 360,
2008-Ohio-684, 887 N.E.2d 363, ¶ 10.
{¶ 14} Four months after the Eighth District rendered its decision, the
Seventh District Court of Appeals addressed a similar matter. DeLost v. First
Energy Corp., 7th Dist. No. 07 MA 194, 2008-Ohio-3086. In DeLost, the
property owners sought an injunction to prevent Ohio Edison from cutting down
white pine trees and other vegetation that had been planted within the utility
company’s easement. Id. at ¶ 2-3. Based on this court’s decision in State ex rel.
Illum. Co., 97 Ohio St.3d 69, 2002-Ohio-5312, 776 N.E.2d 92, the appellate court
reasoned that when an issue raised in a complaint requires that statutes and/or
regulations administered and enforced by PUCO be considered, the issue is not
pure contract and is within the exclusive jurisdiction of PUCO. DeLost, 2008-
Ohio-3086, ¶ 33-35. The court went on to note that the Ohio Administrative
Code chapter on electric service and safety standards, Ohio Adm.Code 4901:1-10,
requires that utility companies establish a right-of-way vegetation-control
program to maintain safe and reliable service (Ohio Adm.Code 4901:1-10-27(E)).
Id. at ¶ 39. Because vegetation management within an easement is necessary to
ensure that reliable service is provided to consumers, the DeLost court concluded
that cutting down vegetation is a practice relating to service as contemplated by
R.C. 4905.26 and that it fell within PUCO’s exclusive jurisdiction. Id. at ¶ 40.
Therefore we must determine whether the court of appeals in this case or in
DeLost is correct.
5
SUPREME COURT OF OHIO
{¶ 15} We agree with the DeLost court that this type of case falls within
the exclusive jurisdiction of PUCO. The first part of the Allstate test asks whether
PUCO’s administrative expertise is required to resolve the issue in dispute. Ohio
Adm.Code 4901:1-10-27(D)(2) requires that each electric utility inspect its
electric-transmission facilities (circuits and equipment) at least once every year.
The inspections are to be conducted in accordance with written programs. Ohio
Adm.Code 4901:1-10-27(E)(1). “These programs shall establish preventative
requirements for the electric utility to maintain safe and reliable service.
Programs shall include, but are not limited to, the following facilities: * * * (f)
Right-of-way vegetation control * * *.” Id. The vegetation-management plan
takes a number of factors into consideration such as arcing, sagging, and line
voltage as well as regulatory requirements from OSHA, FAA, and the Army
Corps of Engineers. In addition, electric utilities are required to comply with the
American National Standard Institute’s “National Electrical Safety Code.” Ohio
Adm.Code 4901:1-10-06. Finally, electric utilities are required to submit their
programs to the director of the consumer-services department for review and
acceptance. Ohio Adm.Code 4901:1-10-27(E)(2). If the electric utility and the
director cannot agree on the details and contents of the plan, the electric utility is
required to file a complaint with PUCO. Id. The company’s decision to remove a
tree is governed by its vegetation-management plan, which is regulated by PUCO.
Therefore, we conclude that PUCO’s administrative expertise is required to
resolve the issue of whether removal of a tree is reasonable.
{¶ 16} The second part of the Allstate test is whether the act complained
of constitutes a practice normally authorized by the utility. Vegetation
management is necessary to maintain safe and reliable electrical service. See
Ohio Adm.Code 4901:1-10-27(E)(2). Thus, the second part of the test is satisfied.
Having answered both Allstate questions in the affirmative, we determine that this
case falls within the exclusive jurisdiction of PUCO.
6
January Term, 2009
{¶ 17} Despite the Corrigans’ argument that we are presented with a pure
contract matter, this case is not about an easement. There is no question that the
company has a valid easement and that the tree is within the easement.
Furthermore, the language of the easement is unambiguous and provides the
company with the following rights:
{¶ 18} “Said right and easement shall include the right of the Grantee, its
successors and assigns, at all times to enter upon the right of way occupied by
said transmission lines for the purpose of constructing, inspecting, protecting,
repairing or removing said towers, wires, fixtures and appliances, together with
full authority to cut and remove any trees, shrubs or other obstructions upon the
above described property which may interfere or threaten to interfere with the
construction, operation and maintenance of said transmission lines.” (Emphasis
added.)
{¶ 19} This language grants the company the right to remove any tree
within the easement that could pose a threat to the transmission lines. See also
Beaumont v. FirstEnergy Corp., 11th Dist. No. 2004-G-2573, 2004-Ohio-5295, ¶
22.
{¶ 20} It is clear from the record that the Corrigans are not contesting the
meaning of the language of the easement but rather the company’s decision to
remove the tree instead of pruning it. In 2000, the company changed its
vegetation-management plan so that its policy was to remove vegetation that
threatened to interfere with its lines. Although the Corrigans disagree with this
policy, the broad language of the easement granted to the company allows the
utility to remove trees within its easement that may interfere or threaten to
interfere with its power lines. Therefore, the Corrigans’ complaint with the
decision to remove the tree is really an attack on the company’s vegetation-
management plan. That type of complaint is a service-related issue, which is
within PUCO’s exclusive jurisdiction.
7
SUPREME COURT OF OHIO
III
{¶ 21} We agree with the DeLost court. The relevant sections of the Ohio
Administrative Code show that vegetation management is manifestly service-
related. DeLost, 2008-Ohio-3086, ¶ 39-40. R.C. 4905.26 specifically confers
exclusive jurisdiction upon PUCO to determine whether any service provided by
a public utility is in any respect unjust, unreasonable, or in violation of the law.
Columbia Gas, 102 Ohio St.3d 349, 2004-Ohio-3208, 810 N.E.2d 953, at ¶ 16.
Therefore, whether the company’s decision that the silver maple interferes or
threatens to interfere with its transmission line is reasonable is a service-related
question within PUCO’s exclusive jurisdiction.
{¶ 22} The judgment of the Cuyahoga County Court of Appeals is
reversed.
Judgment reversed.
MOYER, C.J., and LUNDBERG STRATTON and O’CONNOR, JJ., concur.
PFEIFER, O’DONNELL, and CUPP, JJ., dissent.
__________________
O’DONNELL, J., dissenting.
{¶ 23} I respectfully dissent.
{¶ 24} The central issue in this case is whether the Public Utilities
Commission of Ohio (“PUCO”) has exclusive jurisdiction over the Corrigans’
claim that the Illuminating Company does not have the right to cut down a silver
maple tree that stands on the Corrigans’ property, within an easement owned by
the utility. Unlike the majority, I am of the view that the utility’s right to remove
the Corrigans’ tree depends on the terms of the easement, not the utility’s internal
vegetation-management plan. Because the PUCO has no special expertise with
respect to interpretation of an easement, the court of common pleas properly
exercised jurisdiction over this action for a permanent injunction to prevent the
removal of the tree.
8
January Term, 2009
{¶ 25} In addition, I would affirm the appellate court’s decision that the
trial court did not abuse its discretion when enjoining the utility from removing
this tree. We are obligated to give broad deference to the trial court’s factual
findings, and in my view, the record contains sufficient evidence to support the
trial court’s finding that the Corrigans’ tree does not threaten the transmission
line.
{¶ 26} The Illuminating Company operates an electric transmission line
that crosses the Corrigans’ property, and pursuant to an easement, the utility has
the right “at all times to enter upon the right-of-way occupied by said
transmission lines * * * with full authority to cut and remove any trees, shrubs, or
other obstructions * * * which may interfere or threaten to interfere with the
construction, operation and maintenance of said transmission lines.” (Emphasis
added.)
{¶ 27} A silver maple tree has stood within the bounds of this easement
for at least the last 50 years. From 1975, when the Corrigans’ bought the
property, until 2000, utility employees would enter their property when necessary
and prune the 50-foot tree away from the transmission line. In 2000, however, the
utility changed its policy in favor of removing any vegetation from within its
easements. Thus, the utility informed the Corrigans in 2004 that it intended to
remove their silver maple, and in response, they filed the instant action in the
Cuyahoga County Common Pleas Court seeking a permanent injunction against
the Illuminating Company.
{¶ 28} The first issue before us is whether the PUCO has exclusive
jurisdiction over the Corrigans’ claim, and as the majority acknowledges, our
decision in Allstate Ins. Co. v. Cleveland Elec. Illum. Co., 119 Ohio St.3d 301,
2008-Ohio-3917, 893 N.E.2d 824, sets forth the applicable test in this regard: “
‘First, is PUCO’s administrative expertise required to resolve the issue in dispute?
Second, does the act complained of constitute a practice normally authorized by
9
SUPREME COURT OF OHIO
the utility?’ ” Id. at ¶ 12-13, quoting Pacific Indemn. Ins. Co. v. Illum. Co.,
Cuyahoga App. No. 82074, 2003-Ohio-3954, ¶ 15. As we stated, “If the answer
to either question is in the negative, the claim is not within PUCO’s exclusive
jurisdiction.” Id.{¶ 29} In concluding that the PUCO has special expertise necessary to
resolve this case, the majority characterizes the Corrigans’ claim as “an attack on
the company’s vegetation-management plan,” which the utility is required to have
pursuant to Ohio Adm.Code 4901:1-10-27(E). Majority opinion at ¶ 20. In my
view, however, the central issue raised by the Corrigans’ complaint is whether
their maple tree “may interfere or threaten to interfere” with the transmission line.
This requires interpretation and application of the terms of the easement, not the
utility’s vegetation-management plan, and as with any written agreement, the
interpretation of an easement depends on its plain language. See Murray v. Lyon
(1994), 95 Ohio App.3d 215, 219, 642 N.E.2d 41, citing 36 Ohio Jurisprudence
3d (1982) 414, Easements and Licenses, Section 25. Moreover, the fact that Ohio
Adm.Code 4901:1-10-27(E) requires a utility to have a vegetation-management
plan does not mean that the Illuminating Company is authorized to implement that
plan without regard to the terms of an easement.
{¶ 30} The PUCO has no special expertise with respect to the
determination of rights under an easement, and thus it does not have exclusive
jurisdiction here. As we explained in Allstate, “PUCO is not a court and has no
power to judicially ascertain and determine legal rights and liabilities.” 119 Ohio
St.3d 301, 2008-Ohio-3917, 893 N.E.2d 824, ¶ 6, citing State ex rel. Dayton
Power & Light Co. v. Riley (1978), 53 Ohio St.2d 168, 170, 7 O.O.3d 317, 373
N.E.2d 385. Furthermore, the fact “[t]hat PUCO has exclusive jurisdiction over
service-related matters does not diminish ‘the basic jurisdiction of the court of
common pleas * * * in other areas of possible claims against utilities, including
10
January Term, 2009
pure tort and contract claims.’ ” (Emphasis added.) Id., quoting State ex rel.
Ohio Edison Co. v. Shaker (1994), 68 Ohio St.3d 209, 211, 625 N.E.2d 608.
{¶ 31} Accordingly, I would answer the first question in the Allstate
analysis in the negative and hold that the trial court properly exercised jurisdiction
over the Corrigans’ action in this case.
{¶ 32} Second, I would affirm the appellate court’s determination that the
trial court did not abuse its discretion when it enjoined the utility from removing
the maple tree.
{¶ 33} As we stated in Garono v. State (1988), 37 Ohio St.3d 171, 173,
524 N.E.2d 496, “[t]he grant or denial of an injunction is solely within the trial
court’s discretion and, therefore, a reviewing court should not disturb the
judgment of the trial court absent a showing of a clear abuse of discretion.” Id.,citing Perkins v. Quaker City (1956), 165 Ohio St. 120, 125, 59 O.O. 151, 133
N.E.2d 595 (“unless there is a plain abuse of discretion on the part of trial courts,
in granting or refusing injunctions, reviewing courts will not disturb such
judgments”).
{¶ 34} Moreover, we have emphasized that a reviewing court “must not
substitute its judgment for that of the trial court where there exists some
competent and credible evidence supporting the findings of fact and conclusions
of law rendered by the trial court.” Myers v. Garson (1993), 66 Ohio St.3d 610,
616, 614 N.E.2d 742. See also Fabe v. Prompt Fin., Inc. (1994), 69 Ohio St.3d
268, 276, 631 N.E.2d 614. Also, as we explained in State v. Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, under the civil manifest-weight-of-
the-evidence standard, “a court has an obligation to presume that the findings of
the trier of fact are correct. * * * This presumption arises because the trial judge
had an opportunity ‘to view the witnesses and observe their demeanor, gestures
and voice inflections, and use these observations in weighing the credibility of the
11
SUPREME COURT OF OHIO
proffered testimony.’ ” Id. at ¶ 24, quoting Seasons Coal Co., Inc. v. Cleveland
(1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 461 N.E.2d 1273.
{¶ 35} In this case, the trial court found that the Corrigans’ maple tree
does not threaten the transmission line. On appeal, the court of appeals reviewed
the maps, photos, exhibits, and transcripts of expert and lay witnesses’ testimony
in the record, and it stated that “the branches [of the maple tree] are * * * clearly
distant from the power lines, even when taking into consideration the maximum
sag lines, arc, and other testimony elicited from the Illuminating Company’s
staff.” Corrigan v. Illum. Co., 175 Ohio App.3d 360, 2008-Ohio-684, 887 N.E.2d
363, ¶ 25-26. Moreover, the appellate court observed that “most of the tree’s
canopy hangs on one side of the tree, away from the power lines and toward the
Corrigans’ home. Neither party proved which direction the tree would likely fall,
if ever, given the size and weight of the tree and the direction of the canopy.
However, the Corrigans’ arborist expert testified that the tree is not leaning
toward the transmission lines.” Id. at ¶ 27. As the appellate court also recognized,
the Corrigans have paid more than $1,200 for pruning and application of a
hormone that will slow or stop the tree’s growth. Id. at ¶ 25.
{¶ 36} Thus, in my view, the record contains at least “some competent
and credible evidence supporting the findings of fact and conclusions of law
rendered by the trial court.” Garson, 66 Ohio St.3d at 616, 614 N.E.2d 742.
Accordingly, the trial court did not clearly abuse its discretion, and we may not
substitute our judgment with respect to its findings of fact and conclusions of law.
Id.{¶ 37} For these reasons, I respectfully dissent and would affirm the
decision of the court of appeals in this case.
PFEIFER, J., concurs in the foregoing opinion.
__________________
CUPP, J., dissenting.
12
January Term, 2009
{¶ 38} I respectfully dissent from the majority’s conclusion that
determining the scope of the easement held by the electric utility company in this
case involves jurisdiction granted exclusively to the Public Utilities Commission
of Ohio (“PUCO”). In this regard, I join the dissenting opinion of Justice
O’Donnell.
{¶ 39} However, on the determination that the easement did not permit
removal of the tree at issue herein, I agree with the dictum in the majority opinion
that the trial court abused its discretion in applying the law to the facts of this
case. In this regard, I agree with the well-reasoned dissent from the appellate
court opinion in this case:
{¶ 40} “The majority appears to require evidence that the Corrigans’ tree
* * * cannot threaten the transmission line unless the Illuminating Company first
receives a citation or experiences problems with the FAA or the Army Corps of
Engineers. Further, the majority relies heavily on the lack of any interruption in
electrical service rather than on the threat that the tree ‘may interfere or threaten
to interfere’ with the maintenance of the transmission lines, the specific language
of the easement at issue.
{¶ 41} “The Illuminating Company’s utility arborist testified that the
Corrigans’ tree was near transmission lines, as opposed to distribution lines, so
that if service was disrupted because the tree fell, the disruption would affect
many people, not just the neighborhood. He opined that the tree could not be
sufficiently pruned to maintain five years of clearance. He also testified that the
‘accepted best practice’ used to be pruning, but in 2000, the Illuminating
Company changed its accepted best practice to removal.
{¶ 42} “The Corrigans’ arborist testified that if the tree fell, it would not
hit the power lines. However, he conceded that his opinion was based only on
visual estimates, because he had not taken any measurements.
13
SUPREME COURT OF OHIO
{¶ 43} “Daniel Neff, an engineer, testified that the tree was 22 feet from
the electric wires. He further testified that if the tree fell in the direction of the
wires, the tree would hit the wires.
{¶ 44} “Richard O’Callaghan, the director of engineering for FirstEnergy,
with 24 years of electrical engineering experience, testified that the Illuminating
Company attempts to maintain a 25-foot clearance to any vertical object, but it is
required to maintain 21 feet of clearance by the National Electric Safety Code. He
further testified that the tree ‘interferes with the maintenance and safe operation of
the transmission line’ based upon the clearance, location, and height of the tree.
He further testified that the tree is higher than the lower and possibly middle
conductors and, if the tree were just to be trimmed, it would require that 16 feet be
trimmed from it. But in his opinion, the tree must be removed. He explained that
twice each year, the Illuminating Company does an aerial survey, and he
described the process by which the company decides which trees need to be
pruned and which trees need to be removed.
{¶ 45} “The overwhelming testimony supported the tree’s removal. There
was no testimony that the easement did not allow for removal. There was no
argument that the easement was invalid. And the only person to testify that the
tree was not or would not become a threat was the Corrigans’ arborist, who had
taken no measurements.
{¶ 46} “The Illuminating Company should be permitted to maintain its
transmission conductors in accordance with industry guidelines. Since the
easement allows for a tree to be removed if it threatens to interfere, the plain
language of the contract allows the Illuminating Company to remove the tree.”
Corrigan v. Illum. Co., 175 Ohio App.3d 360, 2008-Ohio-684, 887 N.E.2d 363, ¶
35-41 (Cooney, P.J., dissenting).
{¶ 47} Therefore, I would affirm that part of the judgment of the appellate
court that holds that jurisdiction to determine the issues raised in this case resides
14
January Term, 2009
in the courts and not the PUCO, and I would reverse that portion of the judgment
below that affirms the order granting a permanent injunction preventing the tree
within the easement from being removed.
__________________
Lester S. Potash, for appellees.
Roetzel & Andress, Denise M. Hasbrook, Donald S. Scherzer, and Emily
Ciecka Wilcheck, for appellant.
______________________
15