Ohio’s Most Litigated Private Pool?

In Litigation, Real Estate by Coolidge Wall

An Ohio family in Mahoning County has demonstrated their commitment to property rights, swimming, or both.

In 1949, Ohio Edison obtained an easement for building and maintaining an electric transmission line, and currently maintains a 69,000 high voltage line within the easement area. More than 25 years later, in 1977, the Wilkes family purchased a home on a lot partially covered by Ohio Edison’s easement. In 1993, they installed an above-ground swimming pool and storage shed within the minimum safe distances from the transmission lines pursuant to the National Electrical Safety Code.

In November of 2008, Ohio Edison notified them to relocate or remove the structures within 14 days. The Wilkes family retained counsel who was unable to resolve the dispute despite threatening to “have each and every employee of Ohio Edison who trespass or attempt to trespass on Mr. and Mrs. Wilkes’ property arrested and charged with all felony criminal statutes presently enacted in the State of Ohio.”

Ohio Edison filed suit on April 8, 2009 in the Mahoning County Common Pleas Court seeking to enforce the easement and obtain relief ordering the family to remove the structures. The Wilkes family also initiated a separate proceeding with the Public Utilities Commission of Ohio on August 5, 2009, and asked the PUCO to order Ohio Edison to move the transmission lines. After the PUCO dismissed the complaint, the Wilkes family appealed to the Ohio Supreme Court on May 3, 2011.

Meanwhile, the Mahoning County litigation that Ohio Edison started continued. In August of 2010, a court magistrate ordered the family to relocate the pool and the shed. After challenging that decision with the sitting judge who agreed with the magistrate, the Wilkeses appealed. The trial judge declined to suspend his order while they appealed. On May 5, 2011 (while both appeals were pending), the trial court judge found the Wilkeses to be in contempt of court and fined them. Soon thereafter, however, the court of appeals stayed Ohio Edison’s case on May 25, 2011 in order to allow the Supreme Court to determine the Wilkes’ appeal from the PUCO.

The Ohio Supreme Court decided on February 22, 2012, that the dispute belonged in court rather than before the PUCO. According to news accounts the next day, the family intends to battle on, and presumably will resume their appeal from the Mahoning County Common Pleas Court decision in the Ohio Edison matter.

While the Wilkes’ fight with Ohio Edison has been working its way through the courts and the PUCO, the Wilkes family has managed to avoid moving their pool and shed and otherwise could have continued to use them for three summer seasons. But the battle is not over yet and, in the final analysis, the Wilkes family will have to decide whether it was worth it to spend that amount of time and presumably a lot of money to try to protect their right to a private dip in the backyard pool. Perhaps the answer is already clear since the trial court issued an order on June 19, 2009 precluding the family from using the pool.

The Wilkes’ return to court in Ohio’s Seventh District Court of Appeals was an unhappy one. While the Wilkes family asked that court to force the PUCO to take jurisdiction over the dispute, the court declined to do so in view of the PUCO’s determination of its own jurisdiction, and the Ohio Supreme Court’s decision affirming the PUCO. The Seventh District also decided in June of 2012 to affirm the trial court’s decision ordering the Wilkeses to remove the pool and shed. Not fully deterred, the Wilkes family sought review in the Ohio Supreme Court. Ohio’s Supreme Court ended this legal odyssey with a decision in November of 2012 refusing to hear the appeal.

The Supreme Court’s decision affirming the PUCO is In re Complaint of Wilkes v. Ohio Edison Co., Ohio Slip Op. No. 2012-Ohio-609.

The Seventh District’s opinion is Ohio Edison Company v. Thomas Wilkes, Case No. 10 MA 174, 2012-Ohio-2718. Ohio’s Supreme Court declined the opportunity to review at 2012-Ohio-5149.