Kell v. Appalachian Power Co
In Kell v. Appalachian Power Co., 170 W. Va. 14, 19, 289 S.E.2d 450, 456 (1982), the Court concluded that a right-of-way easement granting a power company the right to cut and remove trees did not authorize the power company to broadcast spray toxic herbicides over the right-of-way.
In reaching this conclusion, the Court considered, inter alia, the fact that "the use of aerial broadcast spraying of herbicides to control vegetation along a right-of-way was unknown in 1939 when the indenture was executed and could not have been within the specific contemplation of the parties to the 1939 indenture involved in this case." Kell, 170 W. Va. at 19, 289 S.E.2d at 456.
The Court observed in Kell the well established principal that "the grantor-owner of the land retains the right to make any reasonable use of the land subject to the easement so long as that use is not inconsistent with the rights of the grantee." 170 W. Va. at 17, 289 S.E.2d at 453.
The Court further noted that the right to make reasonable use of land subject to such an easement included, inter alia, "cultivation of the land, the right to pass along and across the land, the taking of minerals from the land and the construction of driveways or parking lots on the land." Id. at 17, 289 S.E.2d at 454.
The Kell Court determined that the power company's application of toxic herbicides in a manner that spread the dangerous chemicals over the land, in some circumstances exceeding the boundaries of its easement, and indiscriminately killing all vegetation within and to some degree around, the easement, exceeded what was contemplated by the parties to the deed, and substantially impacted the landowners ability to use and enjoy the land subject to the easement.