{¶ 34} I concur with the majority's decision to uphold the common pleas court's jurisdiction, but I disagree with its decision to affirm the courts issuance of a permanent injunction.
{¶ 35} The majority appears to require evidence that the Corrigans' tree (which grows in Brooklyn) cannot threaten the transmission line unless the *Page 369 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.
{¶ 36} 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.
{¶ 37} 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.
{¶ 38} 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.
{¶ 39} 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.
{¶ 40} 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.
{¶ 41} 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. *Page 370
{¶ 42} Therefore, I would reverse the granting of a permanent injunction and allow the tree to be removed.