Yup, they did it again. You know from last Sunday’s post that FirstEnergy’s Mon Power committed pure trespass against two neighbors of mine. Mon Power sub-contracts its right of way maintenance to PA-based Asplundh, which in turn sub-contracts aerial spraying of herbicides to smaller sub-contractors. So we have four levels of corporate players here: FirstEnergy, its WV subsidiary Mon Power, Asplundh and the helicopter company that actually did the spraying.
So here’s the story.
There is a 138 kV transmission line that crosses our hollow on the land owned by two of my nearest neighbors. The line was built in the mid-1970s, when another neighbor of mine owned all the land now owned by my other two neighbors. I will call the original land owner neighbor A. Neighbor A is a shrewd negotiator, because he was one of the last people on the entire line to sign a right of way agreement. As a result, he got a clause included in his deed to Monongahela Power, the owner of the new line, that prevented Mon Power or any successor company from using aerial herbicide sprays on his land, including the new right of way. Neighbor A later broke up his original tract and two parts of his former property are now owned by neighbors B and C. I rent pasture for my two draft horses from neighbor B, under the transmission line and directly adjacent to the forested area sprayed illegally by Mon Power.
In the first spray incident last week, the helicopter sprayed part of the brush-covered right of way owned by neighbor B. The spray did not cover all of her hillside. Across the hollow, the helicopter killed all the vegetation on the entire visible right of way on neighbor C’s property, probably as much as 5 acres or more. As you can see from my earlier post, I found the Mon Power 800 number to call with spray problems. Needless to say, I called it on Monday morning.
By Monday afternoon, I got a call from Asplundh’s regional supervisor who was in our area and came out to look at the damage later in the day. Both neighbors B and C were out of town, so the supervisor and I walked my rented pasture together. He admitted that this was clearly an error and told me to have the owners of the property contact him. I passed on the information to my neighbors and assumed the company would offer them a settlement.
Note that there is not a lot of actual property damage done by this spraying. The company has cut these rights of way by hand for years, so it is all just low growing brush. However, there is a publicly recorded deed that specifically prevents Mon Power from spraying this land. Period. Regardless of any actual damage done, this is a clear cut case of pure trespass and the company needs to be punished for its for its trampling of land owners’ property rights that Mon Power had signed its corporate name to back in the 1970s.
But wait, yesterday, around noon I heard a helicopter. Then another neighbor of mine called me to tell me that she had actually watched as the helicopter came back and sprayed neighbor B’s property again. What?! After I had already shown the Asplundh supervisor the damage from the first illegal spraying? So I made another round of phone calls to neighbor B and neighbor C. Neighbor C was particularly angry, because she had been called several weeks ago by both FirstEnergy and Asplundh and had informed both company employees that her property could not be sprayed.
To their credit, a representative of the helicopter sub-contractor called everyone involved and admitted full responsibility for the mistakes. He also expressed a strong willingness to settle with my neighbors and submit to punishment for this trespass. The problem is that it appears the out of state corporate giants, FirstEnergy, Mon Power and Asplundh, are trying to avoid their legal responsibility by making the small helicopter company the fall guy. After all, the land owners’ agreement is with Mon Power, not the helicopter company.
By the way, the helicopter representative that I spoke with yesterday told me the name of his company. This company is not listed in the WV Secretary of State’s online database of companies licensed to do business in WV.
Mon Power will claim that my neighbors’ properties were clearly marked on the maps they gave the helicopter company. Is that the only legal responsibility Mon Power has? I would argue no. Mon Power is the company directly responsible to the land owners where its equipment is located.
This experience is an important lesson for any land owners who are approached by a power company for any kind of transmission right of way.
You and your lawyer can get all kinds of protections written into your right of way agreement with a power company, but no one can insure that the company will negligently or intentionally violate that agreement at some point in the future. When you come right down to it, the agreement, no matter how good, is only words on paper.
The only way to insure that your land is protected is to keep anyone from building any kind of transmission line or other industrial facility on your land. Never. That means that, to paraphrase Winston Churchill, you fight them on your land, you fight them at the PSC, you fight them in the courts, but you don’t let them build their line on your property. Most important of all, you join with your neighbors and friends to protect your community from the ravages of the out of state corporate shell game. Don’t give them the opportunity to make their “mistakes” on your land.