Ohio Edison Co. v. Wilkes
| Decision Date | 13 June 2012 |
| Docket Number | CASE NO. 10 MA 174 |
| Citation | 2012 Ohio 2718 |
| Parties | OHIO EDISON COMPANY, PLAINTIFF-APPELLEE, v. THOMAS WILKES, et al., DEFENDANTS-APPELLANTS. |
| Court | Ohio Court of Appeals |
For Plaintiff-Appellee:
Attorney Stephen Funk
For Defendants-Appellants:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
{¶1} Defendants-appellants Thomas and Derrell Wilkes appeal the decision of the Mahoning County Common Pleas Court, which entered judgment in favor of plaintiff-appellee Ohio Edison and ordered appellants to move their aboveground pool and shed to a location that is more than fifty feet from the center line of Ohio Edison's electric transmission line that runs through an easement. Appellants initially argue that PUCO has exclusive jurisdiction over the issue. The substantive issue raised by appellants is whether the court properly interpreted the word "obstruction" in the easement. They also contend that the statute of limitations has run and that Ohio Edison's action should be barred by laches, waiver, and estoppel.
{¶2} As to the jurisdictional issue, we cannot rule that PUCO rather than the trial court had jurisdiction because: PUCO already declined jurisdiction in this case; we have no power to review their decision; and, the Supreme Court has affirmed PUCO's denial of jurisdiction. Regarding the substance of the main issue, we conclude that the trial court properly construed the word obstruction to include structures within the easement and within the arcing zone. Finally, the statute of limitations has not run, and the action is not barred by other equitable doctrines due to the continuing nature of the danger posed by arcing and the utility's continuing inability to run the lines at full power. Accordingly, the judgment of the trial court is affirmed.
{¶3} In 1949, an owner of acreage in Boardman granted an easement to Ohio Edison for the construction and maintenance of high voltage electrical transmission lines. The easement gives Ohio Edison the right to keep the right-of-way clear of all trees, bushes, and other "obstructions" within fifty feet of the center line. In 1977, years after the lines were erected, the Wilkes purchased their lot at 8230 Gardenwood Place. In 1993, the Wilkes erected a shed and an above-ground pool on their lot.
{¶4} In 2008, Ohio Edison informed the Wilkes that the National Electrical Safety Code (NESC) provides that their pool and shed are too close to the lines,causing a danger of arcing. The Wilkes were provided time to move the structures further from the line, but they eventually refused to do so.
{¶5} On April 8, 2009, Ohio Edison filed a complaint in the Mahoning County Common Pleas Court asking for injunctive and declaratory relief. Ohio Edison relied on the express easement, and in the alternative, implied and prescriptive easements. They also alleged nuisance.
{¶6} The Wilkes responded in part by arguing that Ohio Edison is not bound by the NESC and stating that Ohio Edison gave them permission to construct the structures in 1993. They also filed counterclaims for trespass, nuisance, and intentional infliction of emotional distress.
{¶7} The Wilkes filed a motion to dismiss arguing that the Public Utilities Commission of Ohio (PUCO) had exclusive jurisdiction and noting that they had filed a complaint with PUCO to determine if the location of the pool and shed constituted safety hazards. Motions for summary judgment were filed by both parties as well.
{¶8} On August 16, 2010, the magistrate issued a decision granting Ohio Edison's motion for summary judgment; findings and conclusions were issued on September 14, 2010. The magistrate found that the pool and shed are located within Ohio Edison's right of way. NESC minimum clearance for the pool is 25.7 feet, but the pool is only 20.7 feet from the conductors. Minimum clearance for the shed is 13.2 feet, but the shed is only 10 feet from the lines. The magistrate found that the location of these structures poses a continuing nuisance that interferes with Ohio Edison's right to operate the lines in a safe and reliable manner.
{¶9} The magistrate stated that Ohio Edison was entitled to an injunction to enforce its rights under the easement. The magistrate alternatively stated that if there is no express easement, then there is an implied easement to operate the lines and to take any actions necessary for safe and reliable operations. Also alternatively, the magistrate held that Ohio Edison would have a prescriptive easement to operate and maintain the lines due to its open, notorious, adverse, and continuous use for more than 21 years. The magistrate held that the court had jurisdiction to enforce the easement and ordered the Wilkes to move the shed and pool.
{¶10} The Wilkes objected to the magistrate's decision. On October 21, 2010, the trial court overruled the objections and adopted the magistrate's decision. The court ordered the Wilkes to move the shed and pool out of the right of way within 120 days. The Wilkes [hereinafter appellants] filed a timely notice of appeal.
{¶11} Appellants set forth eight assignments of error, the first of which provides:
{¶12} "THE TRIAL COURT ERRED IN OVERRULING THE APPELLANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO CORRIGAN V. ILLUMINATING COMPANY (2009), 122 OHIO ST.3d 265, 910 N.E.2d 1009."
{¶13} Regardless of whether we believe PUCO had jurisdiction, there is an obstacle to our making such a holding. On February 23, 2011, PUCO ruled that it did not have jurisdiction over the complaint, distinguishing vegetation management from removal of structures, claiming that they had no expertise in the matter, and stating that the matter can be resolved by a court's application of the terms of the easement.
{¶14} PUCO is allowed in the first instance to determine its own jurisdiction. In re Complaint of Residents of Struthers, Ohio, 45 Ohio St.3d 227, 231, 543 N.E.2d 794 (1989); State ex rel. Cleveland Elec. Illuminating Co. v. PUC, 173 Ohio St. 450, 452, 183 N.E.2d 782 (1962). See also 78 Ohio Jurisprudence 3d, Public Utilities, Section 27. And, it is only the Ohio Supreme Court that can determine whether PUCO made a proper decision declining to exercise jurisdiction over the issue of structures causing an unsafe line conditions. R.C. 4903.13. A court of appeals must accept PUCO's determinations, or that appellate court would be improperly exercising revisory jurisdiction over PUCO. Northern Ohio Tel. Co. v. Putnam, 164 Ohio St. 238, 246, 130 N.E.2d 91 (1955).
{¶15} Moreover, appellants appealed PUCO's jurisdictional decision to the Ohio Supreme Court, where Ohio Edison was allowed to intervene. We thus held this appeal in abeyance pending the Supreme Court's ruling on the issue of whether PUCO had exclusive jurisdiction in this case. The Supreme Court has now affirmedPUCO's decision. In re Complaint of Wilkes v. Ohio Edison Co., 131 Ohio St.3d 252, 2012-Ohio-609, 963 N.E.2d 1285. In ruling on jurisdiction, the Court found that appellants failed to show that PUCO's expertise was required to resolve this dispute, mostly because they apparently failed to cite the Court to any page within the NESC or explain to that Court how it applies. Id. at ¶ 10. Thus, the Supreme Court has already ruled on the issue of PUCO's jurisdiction on this dispute between these parties.
{¶16} As we cannot force PUCO to take jurisdiction and we cannot make a ruling in contradiction of the Ohio Supreme Court's affirmance of PUCO's decision to decline jurisdiction in this very case, the question of whether the trial court should have left the issue with PUCO has essentially become moot for our purposes or otherwise unreviewable. See State v. Black, 7th Dist. No. 09CO5, 2010-Ohio-2201, ¶ 12 (), citing Pewitt v. Lorain Correctional Inst., 64 Ohio St.3d 470, 472, 597 N.E.2d 92 (1992). See also Hagerman v. City of Dayton, 147 Ohio St. 313, 71 N.E.2d 246 (1947); Ussher v. Ussher, 2d Dist. No. 2009-Ohio-49, 2011-Ohio-1440, fn.3. That is, an event has occurred during the course of this appeal which basically renders it impossible for this court to grant the relief requested. See Miner v. Witt, 82 Ohio St. 237, 92 N.E. 21 (1910). Consequently, this assignment of error is overruled.
{¶17} Appellants' second assignment of error provides:
{¶18} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS WHEN IT RULED THAT THE EXPRESS EASEMENT IN THIS CASE GRANTED OHIO EDISON BROADER RIGHTS THAN THE EASEMENT GRANTED THEM IN CONSTRUING THE WORD 'OBSTRUCTION'."
{¶19} Appellants urge that Ohio Edison's attempt to inject the NESC into the easement is improper. This assignment of error is based upon appellants' belief that the word "obstruction" in the easement clearly and unambiguously means something that blocks or clogs the passage or cuts off sight, citing Howard v. Miami Twp. FireDiv., 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311. Appellants contend that the shed and pool are not obstructions because they do not block the passage of the lines or the linemen who come to service the lines.
{¶20} In the Howard case they rely upon, the Supreme Court analyzed an immunity statute in order to determine whether there was government liability for ice on roads. The Court stated that dictionary definitions of the word obstruction include not just blocking or cutting off sight but also includes merely "hindering and impeding-concepts that do not necessarily require a complete blockage." Id. at ¶ 21-22. The Court found an ambiguity and resolved it by looking at the legislative history. Id. at ¶ 20, 23, 25 (...
To continue reading
Request your trial