May 30, 2012
Power Line Easements

by Justice Paul E. Pfeifer

In the years following World War II this nation experienced a flurry of development and industrial growth.  That growth required electricity, and to meet that demand, electric companies expanded the power grid.  That expansion meant that more lines had to be built to transmit the electricity, which meant that power companies had to buy easements in order to run those lines.  All of which indirectly gave rise to a case that we reviewed earlier this year here – at the Supreme Court of Ohio.

Back in 1949, Ohio Edison purchased an easement in Boardman, Ohio.  The easement was purchased for the purpose of building and maintaining an electric transmission line, and indeed, a 69,000-volt electric transmission line currently runs over the property.

Jump ahead to 1977.  That’s when Thomas and Derrell Wilkes bought a portion of the property subject to the easement.  Years after buying the land – in 1993 – Thomas and Darrell built an above-ground swimming pool and a storage shed on the area of the easement.

That arrangement lasted for 15 years, until Ohio Edison discovered the structure.  The company informed the couple that – according to the National Electrical Safety Code – the pool and shed presented safety issues and asked them to “relocate or remove” the structures.

The Wilkeses – no doubt a bit surprised that after 15 years the pool and shed were considered safety issues – retained an attorney.  Their attorney informed Ohio Edison that he would “have each and every employee of Ohio Edison who trespass or attempt trespass on Mr. And Mrs. Wilkes’ property arrested and charged with all felony criminal statutes presently enacted in the State of Ohio.”

Ohio Edison responded by filing a complaint in the court of common please to enforce the easement, asking the court to order the Wilkeses to remove their structures.

A few months later, the Wilkeses filed their own complaint – not with the court, but rather with the Public Utilities Commission.  In that complaint they took a different approach: they asked the Commission to order the company to move its transmission line.

In response, Ohio Edison filed a motion with the Commission to dismiss the Wilkeses’ complaint, asserting that the Commission lacked jurisdiction over the matter.  The Commission granted the motion.

In granting the motion, he Commission concluded that the technical issue – that the proximity of the pool and shed to the transmission lines violated the National Electrical Safety Code – was undisputed.  What was disputed was “the remedy that should be applied to bring about compliance with the code.”  Or, in other words, which structure must give way – the pool and shed or the transmission line.  And that dispute, the Commission said, involved a legal question of “competing property rights” and thus belonged before the courts.

After that, the Wilkeses brought their case before our court on appeal.

In their appeal the Wilkeses presented three propositions of law, the first of which argued that the Commission has exclusive jurisdiction over a claim for “service-related issues” that “calls for the interpretation and enforcement of the National Electrical Safety Code.”

Generally speaking, the Commission “does not possess judicial power and may not adjudicate controversies between parties as to property rights.”  It does, however, possess exclusive jurisdiction over certain types of claims.  A claim is within the exclusive jurisdiction of the Commission under two conditions – one, if the Commission’s administrative expertise is required to resolve the issue in dispute, and two, the act complained of is a practice normally authorized by the utility.

But the Wilkeses did not show that the Commission’s expertise was required to resolve the disputed issue.  In writing the majority opinion for this case, Justice Yvette McGee Brown said that the Wilkeses only theory on jurisdiction was that “this case requires the Commission to interpret the national Electrical Safety Code.  Yet the Wilkeses offer no explanation of how the code applies to this case – indeed, they do not cite even a single page or section of it.  This lack of explanation and citation of authority suffices as a basis for rejecting their argument.”

We therefore declined to accept their first proposition of law.

In their second, the Wilkeses argued that the Commission had “independent” jurisdiction over their claims because the claims were based upon the laws that govern the Commission and the Commission’s own rules.

It’s true, as Justice McGee Brown pointed out, that in a given case, the Commission and the courts may each have jurisdiction that is independent of the other.  “When a case has both regulatory and legal issues,” Justice McGee Brown wrote, “the Commission would have jurisdiction over the former by virtue of its exclusive jurisdiction, while a court may adjudicate the latter by virtue of its general jurisdiction.”

Here again, the Wilkeses have not demonstrated that an “independent” regulatory claim existed for the Commission to resolve.  They argued that their claims were independent from those raised in the common pleas court because their claims are based upon two large collections of law – the laws that govern the Public Utilities Commission of Ohio and the Ohio Administrative Code.

But, as Justice McGee Brown noted, “This is not a meaningful assertion of a regulatory claim – to cite everything is to cite nothing.”  We thus declined to accept their second proposition of law.

Their third proposition – that the Commission erred by dismissing their “claim for unfair and discriminatory treatment” – was forfeited.  The Wilkeses did not raise this argument in their application for rehearing before the Commission, and we are jurisdictionally barred from considering such claims.

For all of these reasons, we concluded that the Wilkeses had not demonstrated that the Commission erred in dismissing their complaint for lack of jurisdiction.  Therefore, by a seven-to-zero vote, we affirmed the ruling by the Public Utilities Commission – this dispute is over competing property rights and belongs before the courts.

EDITOR'S NOTE: The case referred to is In re Complaint of Wilkes v. Ohio Edison Co., 131 Ohio St.3d 252, 2012-Ohio-609. Case No. 2011-0737. Decided February 22, 2012. Majority opinion written by Justice Yvette McGee Brown.