Caveat Easement Grantor (Grantors of Easements Beware)

An “easement” is the right to use the property of another for a specific purpose. Most common are drive/access easements and utility easements. While there are limited exceptions (e.g. easements by necessity; easements by prescription; and easements by estoppel), the vast majority of easements are created by separate written instruments (or are contained within deeds) and are recorded. Some easements are personal in nature and only apply while the current landowner owns the property, and others are “perpetual” and burden the land forever.


Easements will either spell out the specific rights to use the property granted to the easement “holder” (e.g. right to use the property to place above-ground or below ground electric lines), or be “blanket” in nature and not be limited as to use. Many easements will also contain restrictions which burden the land described as the “easement premises”. Because of the possibility of existing forever, and the severity of restrictions that may be contained within an easement document, one should never agree to an easement without an attorney reviewing same prior to signing.

The recent case of Ohio Edison Co. v. Wilkes, 2012-Ohio-2718 (7th Dist. Ct. of App., Mahoning Cty.) helps to reinforce the need to review easements carefully prior to signing same. The Wilkes case also demonstrates that a court’s interpretation of words in a legal document can be far different from “common meaning”.

The facts of Wilkes are simple enough. In 1949, a landowner prior to Wilkes granted an easement to Ohio Edison over part of his property for building and maintaining a high voltage electric transmission line. In 1977, the Wilkeses purchased the property and in 1993 built an above ground pool and storage shed. Fifteen years later, Ohio Edison demanded the structures be removed due to safety reasons. The Wilkeses refused, and Ohio Edison sued to enforce its written easement.

The Wilkes easement contained a restriction disallowing (and giving the electric co. the right to remove) obstructions to the easement. Typically, when we think of obstructions to an easement, we visualize someone planting a tree in the middle of an access way, or in other words, someone/something physically blocking the use of the easement.

The trial court and the appellate court, however agreed with Ohio Edison in that an obstruction can also be something that hinders or impedes; specifically, something that interferes with Ohio Edison’s right to operate electric lines in a safe and reliable manner. They reasoned that since electric lines may “arc”, within so many feet of the lines, the presence of a pool and structure within the “arc zone” render the easement premises (location of the lines on the property) obstructed.

The Wilkeses also argued that they have enjoyed the use of the pool and shed for over 15 years, and accordingly, Ohio Edison’s claim should be precluded by the legal defenses of “statute of limitations”, “laches” and “estoppel”. The 7th District Court of Appeals, however, applied legal precedent from a Sixth Circuit (federal) Court of Appeals case (Andrews v. Columbia Gas Transmission Corp., 544 F.3d 618) that specifically held that those legal doctrines do not apply to an expressly granted easement.

Moral of this story? If someone comes to you with what they describe as a “simple form easement” or an easement with “typical boiler plate”, and asks you to sign first and ask questions later, turn and run to your friendly lawyer’s office. Easements and accompanying restrictions on the use of your property can live forever and present impediments to your ability to sell your property. While the owner of land that is subject to an easement has the right to use the land in any manner not inconsistent with the easement; that owner has no right to interfere with the reasonable and proper use of the easement or obstruct or interfere with the use of the easement.

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