Ohio’s High Court Analyzes Easement Relating to Removal of Vegetation: It’s All About the Details

The practice of law often brings up fond memories for me of the Simpsons and, specifically, the Treehouse of Horrors episodes. A favorite episode is Season 3, Ep. 7, The Monkey’s Paw, based upon a 1902 short story by W.W. Jacobs. In this story, the Simpson family is granted three wishes from a mummified monkey paw. However, each wish comes with a terrible twist. Knowing this risk, Homer makes the following request:

Alright, I’ll make a wish that can’t possibly backfire. I wish for a turkey sandwich, on rye bread, with lettuce and mustard, and, AND, I don’t want any zombie turkeys, I don’t want to turn into a turkey myself or any other weird surprises! You got that?!

This episode came to mind while reading the Ohio Supreme Court’s recent decision in Corder v. Ohio Edison Co., 2024-Ohio-5432 (2024). In Corder, at issue was an easement granted in the 1940s to Ohio Edison, allowing the utility to “erect, inspect, operate, replace, repair, patrol and permanently maintain . . . all necessary structures, wires, and other usual fixtures and appurtenances” for Ohio Edison, and the “right to trim, cut and remove at any and all times such trees, limbs, underbrush or other obstructions as in the judgment of [Ohio Edison] may interfere with or endanger said structures, wires or appurtenances, or their operation.” Based upon this 1940s easement, Ohio Edison desired to control vegetation through herbicides. The property owners objected.

Ohio’s highest court based its decision upon the legal interpretation of the easement, which is ultimately a contract controlling the use of land. After reviewing principles of contract interpretation and linguistic nuances, including the Oxford comma, the Ohio Supreme Court’s split decision concluded that the easement permitted the use of herbicide to remove obstructions.

For wishes from the monkey’s paw, and the drafting of utility easements, it’s all about the details.

To his horror, Homer eats his sandwich to discover that it’s a little dry. For the Ohio Edison easement, it’s difficult to know if the drafters considered herbicides nearly 70 years ago when the easement was recorded. It was, perhaps, a proviso they failed to consider, just as Homer Simpson failed to consider the freshness of the bread in his turkey on rye. A lesson for today: if you don’t want herbicides to be used in an easement, put that restriction directly in writing.