Ricardo M. Garza v. American Transmission Co. , 374 Wis. 2d 555 ( 2017 )


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    2017 WI 35
    SUPREME COURT              OF   WISCONSIN
    CASE NO.:               2014AP2278 and 2014AP2279
    COMPLETE TITLE:         In re: Acquisition of Property of Ricardo M.
    Garza and Julie L. Garza:
    Ricardo M. Garza and Julie L. Garza,
    Plaintiffs-Appellants,
    v.
    American Transmission Company LLC and ATC
    Management, Inc.,
    Defendants-Respondents-Petitioners.
    __________________________________________________
    American Transmission Company LLC and ATC
    Management, Inc.,
    Plaintiffs-Respondents-Petitioners,
    v.
    Ricardo Garza and Julie Garza,
    Defendants-Appellants.
    REVIEW OF A DECISION OF THE COURT OF APPEALS
    Reported at: 
    366 Wis. 2d 330
    , 
    873 N.W.2d 99
    OPINION FILED:          April 13, 2017
    SUBMITTED ON
    BRIEFS:
    ORAL ARGUMENT:          November 1, 2016
    SOURCE OF APPEAL:
    COURT:                Circuit
    COUNTY:               Waupaca
    JUDGE:                Mark J. McGinnis
    JUSTICES:
    CONCURRED:
    DISSENTED:
    NOT
    PARTICIPATING:
    ATTORNEYS:
    For        the    defendants-respondents-petitioners,    there   were
    briefs by Bryan J. Cahill, Katherine Stadler and Godfrey & Kahn,
    S. C., Madison, and oral argument by Bryan J. Cahill.
    For the plaintiff-appellant, there was a brief by Frank J.
    Jablonski    and   Progressive   Law       Group,    LLC,    Madison,   and    oral
    argument by Frank Jablonski.
    An amicus curiae brief was filed by                      Cori Moore Lamont,
    Madison for The Wisconsin Realtors® Association.
    An amicus curiae brief was filed by Bradley D. Jackson,
    James   E.   Goldschmidt   and   Quarles      &     Brady,    LLP,   Madison    for
    Wisconsin Utilities Association.
    2
    
    2017 WI 35
    NOTICE
    This opinion is subject to further
    editing and modification.   The final
    version will appear in the bound
    volume of the official reports.
    Nos.     2014AP2278 & 2014AP2279
    (L.C. Nos.   2011CV467 & 2011CV478)
    STATE OF WISCONSIN                            :               IN SUPREME COURT
    In re: Acquisition of Property of Ricardo M.
    Garza and Julie L. Garza:
    Ricardo M. Garza and Julie L. Garza,
    Plaintiffs-Appellants,
    FILED
    v.                                                          Apr 13, 2017
    American Transmission Company LLC and ATC                             Diane M. Fremgen
    Clerk of Supreme Court
    Management, Inc.,
    Defendants-Respondents-Petitioners.
    American Transmission Company LLC and ATC
    Management, Inc.,
    Plaintiffs-Respondents-Petitioners,
    v.
    Ricardo Garza and Julie Garza,
    Defendants-Appellants.
    REVIEW of a decision of the Court of Appeals.                  Reversed.
    ¶1    MICHAEL   J.   GABLEMAN,   J.    This       is    a     review      of    an
    unpublished     per    curiam   decision     of    the     court         of    appeals
    Nos.    2014AP2278 & 2014AP2279
    reversing the Waupaca County circuit court's1 grant of summary
    judgment in favor of American Transmission Company LLC and ATC
    Management, Inc. (collectively referred to as "ATC").                                 Garza v.
    Am. Transmission Co., Nos. 2014AP2278 & 2014AP2279, unpublished
    slip op. (Wis. Ct. App. Nov. 19, 2015) (per curiam).
    ¶2        This case requires us to decide whether ATC has the
    right,     either         under    a     1969    deed     of      easement        (hereinafter
    referred       to     as     the       "1969    easement")         or     by      means   of    a
    prescriptive easement under 
    Wis. Stat. § 893.28
    (2) (2013-14),2 to
    enter    the    property          of   Ricardo       M.   and     Julie      L.   Garza   ("the
    Garzas")       and    trim    some,       and    remove     other,        trees      which     are
    threatening          or    endangering         the    operation         of     one   of   ATC's
    electric transmission lines.                    We hold that, under the 1969 deed
    of easement, ATC has the right to enter the Garzas' property to
    both trim and remove the trees that threaten or endanger the
    operation       of    the    relevant          transmission        line.3         This    is    so
    because, contrary to what the Garzas argue, the 1969 easement is
    still in effect, thereby allowing ATC to enter their property.
    The 1969 easement's language "comprising wood pole structures"
    is language of description, not circumscription, and as such, it
    1
    The Honorable Mark J. McGinnis presiding.
    2
    All subsequent references to the Wisconsin Statutes are to
    the 2013-14 version unless otherwise indicated.
    3
    Because we resolve the case under the 1969 deed of
    easement, we do not address whether ATC has prescriptive rights
    under 
    Wis. Stat. § 893.28
    (2) to trim and remove trees on the
    Garzas' property.
    2
    Nos.    2014AP2278 & 2014AP2279
    does not limit the transmission line to being constructed on
    wood poles, thereby terminating the 1969 easement.             Rather, the
    1969 easement grants to the dominant estate holder (here ATC)
    the right to make the change from wood poles to steel poles.
    Therefore, the decision of the court of appeals is reversed.
    I.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY
    ¶3   Jerome    and   Betty   Hertig   ("the    Hertigs")   granted   an
    easement to the Wisconsin Public Service Corporation ("WPSC") by
    deed dated June 28, 1969.        The 1969 easement was recorded on
    July 8, 1969.
    ¶4   The     1969    easement   is    titled    "Transmission      Line
    Easement."    It grants WPSC
    the perpetual right, privilege and easement to erect,
    maintain and operate an electric transmission line,
    comprising wood pole structures[4] conductors and other
    wires, counterpoises, guy wires, braces and other
    usual appendages and appurtenances of such kind as
    said Grantee, its successors and assigns, may from
    time to time determine, for transmitting electric
    current over and across [the Hertigs' property.]
    The 1969 easement continues with a property description of the
    Hertigs' property and a description of the easement route.
    ¶5   The 1969 easement also provides:
    Together with the right from time to time to enter
    upon said premises for the purpose of erecting said
    line, and changing, repairing, patrol[l]ing, replacing
    and removing the same, and the right from time to time
    4
    The 1969 easement was a form easement used by WPSC at the
    time the Hertigs and WPSC entered the 1969 easement.         The
    underlined language represents a blank space on the easement
    form that the parties completed.
    3
    Nos.   2014AP2278 & 2014AP2279
    to clear all brush and trees within 40 feet of each
    side of the center line of such transmission line and
    the right from time to time to cut down, trim or
    remove such trees on said premises beyond such 40 feet
    as in the judgment of Grantee, its successors and
    assigns, may interfere with or endanger said line, and
    to do any and all other acts necessary in the proper
    erection, maintenance, safeguarding, and operation of
    said line.
    ¶6     Pursuant to the 1969 easement, WPSC constructed a 69
    kV5   transmission   line   on   wood       pole   structures        on   the   route
    described therein.6      Following the 1969 easement, in 1977, the
    Hertigs     subdivided   their   property          to     create     Woodland    Park
    Estates subdivision.
    ¶7     In 1995, to meet the community's increased electrical
    needs, WPSC upgraded the transmission line from a 69 kV line to
    a double-circuit 69 kV/138 kV7 line to allow the transmission
    line to carry more electricity.               WPSC also replaced the wood
    poles supporting the transmission line with steel poles.
    ¶8     WPSC assigned the easement to ATC in 2001, and the
    assignment was recorded the same day.
    ¶9     On September 30, 2004, the Garzas purchased Lot 1 of
    Woodland Park Estates.      There is no dispute that, at the time of
    purchase, the Garzas were aware of the transmission line.                        They
    5
    kV stands for kilovolts and serves as a way to measure
    electricity.
    6
    A visual depiction of the transmission line's route is
    included in the Appendix.
    7
    This double-circuit line is composed of two transmission
    lines.
    4
    Nos.     2014AP2278 & 2014AP2279
    saw    the   transmission       line          and    received     a    copy     of    the       1969
    easement with the paperwork when they purchased their home.                                       In
    addition, the 1969 easement was noted on their title insurance
    policy.
    ¶10    Because    Lot        1     is    in     the   southeastern            corner      of
    Woodland     Park   Estates,            the    transmission       line     is    not       on    the
    Garzas'      property.         However,          the    Garzas'       property        is    still
    impacted by the 1969 easement (1) because it is located within
    the 80-foot strip of land wherein WPSC reserved the right to
    clear all trees and brush and (2) because WPSC reserved the
    right to trim and remove trees that "interfere with or endanger"
    the transmission line even if the trees are located outside the
    80-foot strip of land.
    ¶11    In late 2010, ATC contacted the Garzas to notify them
    that    it    needed     to    enter           the    Garzas'     property       to     perform
    maintenance for the operation of the transmission line, which in
    this   case    required       trimming          and    removing       trees     both       on    and
    bordering the Garzas' property.                        The trimming and removal was
    necessary      because        the       trees        threatened       or   endangered           the
    operation of the transmission line.                          As ATC explained in its
    brief, trimming and removing the trees was necessary "to ensure
    5
    Nos.    2014AP2278 & 2014AP2279
    the safe and reliable operation of the transmission line."8                           It
    would also ensure the safety of anyone who may need to perform
    work on a transmission line.
    ¶12       While ATC was able to perform some of the necessary
    work in August 2011, the Garzas prevented ATC from completing
    its maintenance project, and this suit followed.
    ¶13       The   Garzas    filed   an    inverse   condemnation       action    on
    September 6, 2011, in the Waupaca County circuit court (L.C. No.
    2011CV467), and on September 8, 2011, ATC filed a declaratory
    judgment action (L.C. No. 2011CV478) in which it sought an order
    from the court declaring that it had a right, under the 1969
    easement and/or pursuant to the rights of prescriptive easement
    under 
    Wis. Stat. § 893.28
    (2), to enter the Garzas' property and
    trim       and    remove   the     trees      threatening       or   endangering     the
    operation of the transmission line.
    ¶14       On October 3, 2011, the Garzas filed counterclaims in
    which they sought (1) a declaratory judgment that ATC did not
    have the right to enter their property to trim and remove trees
    8
    To make its point that maintaining trees and other
    vegetation surrounding a transmission line is important, ATC
    points to an event in 2003 in Ohio where a tree damaged a
    transmission line and caused roughly 50 million people to lose
    power for two days.     See Brian S. Tomasovic, A High-Voltage
    Conflict on Blackacre:   Reorienting Utility Easement Rights for
    Electric Reliability, 
    36 Colum. J. Envtl. L. 1
    , 6-7 (2011). In
    fact, "[t]he courts have recognized that properly and safely
    maintaining power lines involves keeping the wires clear of
    interference, in the context of an easement acquired by
    condemnation."   Gallagher v. Grant-Lafayette Elec. Co-op, 
    2001 WI App 276
    , ¶18, 
    249 Wis. 2d 115
    , 
    637 N.W.2d 80
    .
    6
    Nos.    2014AP2278 & 2014AP2279
    and   (2)   alleged      trespass,      intentional            property     damage,    and
    inverse condemnation.
    ¶15    After    the     cases    were       consolidated,         ATC    moved   for
    summary     judgment,     and    the    Garzas'          moved    for   a     declaratory
    judgment.       The circuit court, in addressing both motions, found,
    inter alia, that, under the 1969 easement, "ATC is allowed to
    remove    the    trees   at   issue     and       they    do    not   trespass    on   the
    Garzas' property in doing so."                   The circuit court stated, "The
    unambiguous        language     of    the    easement          allows   for     changing,
    repairing,      and/or    replacing         the    transmission         line    over   the
    course of time in perpetuity.                     The language of the easement
    demonstrates that the parties obviously wanted the easement to
    survive changes in both power needs and technology."                           Therefore,
    because Wisconsin law allows the dominant estate holder to do
    what is reasonably necessary to continue enjoying the right to
    use9 granted under a deed of easement, the circuit court found
    that the 1969 easement was not invalidated when the wood poles
    were replaced with steel poles.                     The circuit court found it
    important that WPSC "stayed within the general bounds of the
    easement and only furthered the use of the enjoyment when the
    power demands of the area necessitated changing the facility."
    Consequently, the circuit court granted ATC's motion for summary
    judgment     and     denied     the    Garzas'       motion       for   a     declaratory
    judgment.
    9
    The right to use is a term of art that includes, among
    other things, the right to reasonable implementation of advances
    in technology. This term will be described in greater detail.
    7
    Nos.    2014AP2278 & 2014AP2279
    ¶16    The circuit court also found that summary judgment was
    improper     for     determining         whether       ATC     had     any     prescriptive
    easement rights under 
    Wis. Stat. § 893.28
    (2) because "there are
    questions of fact as to the scope of any prescriptive easement"
    that precluded summary judgment.                   The Garzas appealed.
    ¶17    The    court        of    appeals       reversed       the    circuit     court.
    Garza,   unpublished            slip    op.,    ¶1.      It     interpreted          the   1969
    easement as limiting the transmission line to being constructed
    on a wood pole structure.               Id., ¶15.       Thus, the court of appeals
    "reasoned," the transmission line upon which the 1969 easement
    was founded no longer exists and therefore ATC has no rights to
    enter the Garzas' property.                    Id., ¶16.        The court of appeals
    also stated that ATC failed to show that it has prescriptive
    easement     rights        to    trim    and       remove     trees       on   the    Garzas'
    property.          Id.,    ¶22.         Consequently,         the     court     of    appeals
    reversed the circuit court's grant of summary judgment in favor
    of ATC and remanded the case for further proceedings.                            Id., ¶23.
    ¶18    ATC petitioned this court for review, which this court
    granted on April 6, 2016.                 We now address whether ATC has the
    right to trim and remove the trees threatening or endangering
    the operation of the transmission line under the 1969 easement.
    II.    STANDARD OF REVIEW
    ¶19    This case requires us to review a decision of summary
    judgment and requires us to review an interpretation of a deed
    of easement.        This court reviews a decision of summary judgment
    de novo.     Borek Cranberry Marsh, Inc. v. Jackson County, 
    2010 WI 95
    ,   ¶11,    
    328 Wis. 2d 613
    ,         
    785 N.W.2d 615
    .              "The    proper
    8
    Nos.    2014AP2278 & 2014AP2279
    construction of an easement is a question of law that we review
    de novo."    Id., ¶12.
    III.    DISCUSSION
    A.    Summary Judgment
    ¶20   Summary judgment must be granted "if the pleadings,
    depositions, answers to interrogatories, and admissions on file,
    together with the affidavits, if any, show that there is no
    genuine issue as to any material fact and that the moving party
    is entitled to a judgment as a matter of law."                                 
    Wis. Stat. § 802.08
    (2).
    ¶21   In   making    this    determination,              this    court   applies   a
    two-step test.        Green Springs Farms v. Kersten, 
    136 Wis. 2d 304
    ,
    314-15, 
    401 N.W.2d 816
     (1987).                   Under the first step, this court
    asks if the plaintiff stated a claim for relief.                            
    Id. at 315
    .
    Under the second step, this court applies the summary judgment
    statute and asks if any factual issues exist that preclude a
    grant of summary judgment.          
    Id.
    ¶22   Here, we must interpret the 1969 easement to determine
    whether ATC's motion for summary judgment should be granted.
    B.   Relevant Principles of Easement Law
    ¶23   An   easement    grants          a    right   to     use    another's   land.
    Konneker    v.   Romano,    
    2010 WI 65
    ,   ¶25,    
    326 Wis. 2d 268
    ,   
    785 N.W.2d 432
     (quoting Hunter v. McDonald, 
    78 Wis. 2d 338
    , 343, 
    254 N.W.2d 282
     (1977)).        It also creates two estates:                    the dominant
    estate enjoys the ability to use the land in the way described
    in the easement, while the servient estate permits that use.
    
    Id.
       The dominant estate holder's "use of the easement must be
    9
    Nos.      2014AP2278 & 2014AP2279
    in accordance with and confined to the terms and purposes of the
    grant."      
    Id.
          (quoting     Stoesser        v.    Shore      Drive    P'ship,      
    172 Wis. 2d 660
    ,       668,    
    494 N.W.2d 204
            (1993)).          Any    use    not    in
    accordance    with        the    specific     right      to    use     granted      in    the
    easement is outside the easement's scope and thus prohibited.
    See Grygiel v. Monches Fish & Game Club, Inc., 
    2010 WI 93
    , ¶34,
    
    328 Wis. 2d 436
    , 
    787 N.W.2d 6
    .
    ¶24   For a written easement, "[t]he primary source of the
    parties' intent is what is written within the four corners of
    the deed."       Konneker, 
    326 Wis. 2d 268
    , ¶26.                      Thus, we look to
    the deed of easement10——here the 1969 easement——to determine what
    right to use the dominant estate holder has.
    ¶25   If the language contained in the deed of easement is
    unambiguous,       we    look    no    further     than       the    deed    of    easement
    itself.    
    Id.
            However, if the language is ambiguous, we resort
    to   extrinsic        evidence        to   help    us     determine         the    parties'
    intentions.        
    Id.
          In    this     case,    we    conclude       that      the   1969
    easement is unambiguous, and we need look no further than the
    language contained in the 1969 easement.
    C.     Interpretation of the 1969 Easement
    ¶26   The Garzas argue that ATC does not have the right to
    enter their property to trim or remove the trees threatening or
    endangering the operation of the transmission line because the
    change from wood poles to steel poles invalidated the easement.
    10
    A deed of easement is a document that contains the terms
    of a written easement.
    10
    Nos.    2014AP2278 & 2014AP2279
    They base their argument on language within the 1969 easement
    referring     to   "wood    pole       structures."      The     Garzas     claim     the
    entire 1969 easement is premised on the right to construct a
    transmission       line    on     wood    poles.       Accordingly,         without    a
    transmission line constructed on wood poles, the 1969 easement
    and the rights granted in connection with that transmission line
    cease to exist.           Thus, the Garzas argue, the 1969 easement is
    invalid and ATC no longer has the right to enter the Garzas'
    property.
    ¶27     ATC, on the other hand, argues that to interpret the
    language "comprising wood pole structures" so as to proscribe
    other materials from being used in the structure is to read that
    phrase    out   of   context       and    preclude     evaluation      of    the    1969
    easement as a whole.            ATC further argues that replacing the wood
    poles    with   steel     poles    is    permitted     under     the   implied      term
    contained in every easement that the dominant estate holder may
    do what is reasonably necessary to continue enjoying the right
    to use granted under a deed of easement.                      Thus, ATC argues the
    change from wood poles to steel poles did not invalidate the
    1969 easement and, with the 1969 easement still in place, ATC
    has the right to enter the Garzas' property to trim and remove
    the   trees     threatening       or     endangering    the     operation      of     the
    transmission line.
    ¶28     We agree with ATC.
    1.    An Easement Allows for Advances in Technology and Reasonable
    Implementation of Such Advances Does Nothing to Extinguish the
    Rights Granted Therein
    11
    Nos.     2014AP2278 & 2014AP2279
    ¶29   We   have    long     recognized     that,      implied       in   every
    easement, unless otherwise stated, is the right of the dominant
    estate to do what is reasonably necessary to enjoy the easement.
    Scheeler v. Dewerd, 
    256 Wis. 428
    , 
    41 N.W.2d 635
     (1950) (allowing
    the   parties    to   upgrade    well    facilities    from    a   hand    pump   to
    modern plumbing equipment); see also McDonnell v. Sheets, 
    15 N.W.2d 252
    , 255 (Iowa 1944) (allowing a dominant estate holder
    to use an easement for ingress and egress as a driveway for
    automobiles when the easement stated "team and wagon").                           The
    Restatement (Third) of Property describes the "right to use" as
    follows:
    Except as limited by the terms of the servitude
    determined under § 4.1, the holder of an easement or
    profit as defined in § 1.2 is entitled to use the
    servient estate in a manner that is reasonably
    necessary   for  the   convenient   enjoyment of  the
    servitude.   The manner, frequency, and intensity of
    the use may change over time to take advantage of
    developments in technology and to accommodate normal
    development of the dominant estate or enterprise
    benefited by the servitude. Unless authorized by the
    terms of the servitude, the holder is not entitled to
    cause unreasonable damage to the servient estate or
    interfere unreasonably with its enjoyment.
    Restatement (Third) of Property:               Servitudes § 4.10 (Am. Law
    Inst. 2000) (emphasis added).
    ¶30   We conclude that the change from wood to steel poles
    was   a   reasonable    change    made    in   order   to   take   advantage      of
    developments in technology.             The authorization from the Public
    Service Commission of Wisconsin ("PSCW") noted that the changes
    made to the transmission line in 1995 would be an upgrade that
    would "allow electric distribution system improvements to occur"
    12
    Nos.   2014AP2278 & 2014AP2279
    and noted that the old lines were incapable of providing the
    electricity needed in the area.
    ¶31     Although      the    holder          of     a   dominant       estate         may     take
    advantage    of    advances          in    technology           to     make     more       full    or
    convenient use of the right(s) granted within the easement, the
    dominant    estate's      ability          to        take   advantage         of    advances        in
    technology is not unlimited.                    The dominant estate may not "cause
    unreasonable      damage        to        the        servient        estate        or     interfere
    unreasonably      with    its        enjoyment."                Restatement             (Third)     of
    Property:    Servitudes § 4.10.                  Thus, any changes in the dominant
    estate's    use   may    not    place           an    undue     burden     on      the     servient
    estate.       See       Hunter,           
    78 Wis. 2d at 344
          ("The        dominant
    owner's . . . interest is not an estate in land, but rather a
    right to use the land of another for a special purpose not
    inconsistent      with    the    general             property     in    the        owner.").         A
    change in use that places such a burden on the servient estate
    is outside the scope of the dominant estate's right to use.                                        See
    Grygiel, 
    328 Wis. 2d 436
    , ¶34.
    ¶32     The change from wood to steel placed no undue burden
    on the servient estate.               It is undisputed that steel poles can
    support more weight than wood poles and allow for longer spans
    between poles.      This means fewer poles are needed to support the
    upgraded transmission line, and the Garzas have failed to show
    how the placement of fewer supporting structures——regardless of
    what they are constructed of——along the route of the easement
    places more of a burden on the servient estate because there are
    fewer of them.           See id., ¶23 (quoting Millen v. Thomas, 201
    13
    Nos.    2014AP2278 & 2014AP2279
    Wis. 2d 675, 683-85, 
    550 N.W.2d 134
     (Ct. App. 1996)).                            The steel
    poles were also constructed within the boundary established by
    the 1969 easement, which means the steel poles do not occupy any
    additional space.           Accordingly, no showing has been made that an
    undue burden was placed on the servient estate.
    2.    The Significance of the Phrase "Comprising Wood Pole
    Structures"
    ¶33    Nevertheless, the Garzas argue that the language of
    the 1969 easement expressly forecloses ATC from installing steel
    poles because the 1969 easement refers to the transmission line
    as "comprising wood pole structures."                 However, we conclude that
    this    language      places    no      limitation    on    ATC's   right         to   take
    advantage       of     reasonable          advances    in     technology           because
    "comprising wood pole structures" is language of description,
    not circumscription.
    ¶34    At the beginning of the easement, the context suggests
    the parties intention that the 1969 easement be for the purpose
    of constructing and operating a transmission line:                          Notably, the
    1969 easement is titled "Transmission Line Easement" (and not,
    for    example,       "Easement      for    the   Construction         of     Wood     Pole
    Structures"), and the first right granted in the 1969 easement
    is    the    right    "to     erect,     maintain     and   operate         an    electric
    transmission         line."       The      language   within     the        easement    is
    reflective of the parties' intent that the 1969 easement be for
    the construction and operation of a transmission line.                           There is
    no indication that the parties intended to place any sort of
    limitation      on     either     the      construction     material        or    on   the
    14
    Nos.    2014AP2278 & 2014AP2279
    dominant estate holder's right "to erect, maintain and operate
    an electric transmission line."
    ¶35       The 1969 easement goes on to grant to the "Grantee,
    its successors and assigns" the right to, "from time to time
    determine," the type of conductors, wires, etc. to be used "for
    transmitting           electric      current       over    and    across"     the     property.
    Furthermore, the easement grants the right to enter the property
    "for the purpose of erecting said line, and changing, repairing,
    patrol[l]ing, replacing and removing the same," and the right
    "to do any and all other acts necessary in the proper erection,
    maintenance, safeguarding, and operation of said line."
    ¶36       Read as a whole,11 this language reflects an intention
    on the part of the parties to the 1969 easement to grant the
    dominant estate holder the ability to construct and operate a
    transmission line.                Additional terms touch upon such concepts as
    "changing"            and   "replacing"        that       indicate     that     the    parties
    intended         the    dominant     estate     holder       to    have   the    ability    to
    change its use in a way that allows for the continued operation
    of the transmission line.                   Cf. Wis. Pub. Serv. Corp. v. Andrews,
    
    2009 WI App 30
    ,     ¶12,     
    316 Wis. 2d 734
    ,        
    766 N.W.2d 232
    (interpreting "reconstruct" to allow the dominant estate holder
    to upgrade a transmission line from 161 kV to 345 kV).
    ¶37       In    addition,      the    1969     easement       allows   the     dominant
    estate holder discretion to determine how the transmission line
    11
    See Borek Cranberry Marsh, Inc. v. Jackson County, 
    2010 WI 95
    , ¶¶31-32, 
    328 Wis. 2d 613
    , 
    785 N.W.2d 615
    .
    15
    Nos.    2014AP2278 & 2014AP2279
    should     be       constructed.     The    1969    easement    starts      with   the
    following grant of rights:
    [T]he perpetual right, privilege and easement to
    erect, maintain and operate an electric transmission
    line, comprising wood pole structures conductors and
    other wires, counterpoises, guy wires, braces and
    other usual appendages and appurtenances of such kind
    as said Grantee, its successors and assigns, may from
    time to time determine, for transmitting electric
    current over and across [the property].
    But, it does not end there.                The parties also included a right
    in the 1969 easement that grants discretion to the dominant
    estate to determine what is "necessary in the proper erection,
    maintenance, safeguarding, and operation of said line."                      Perhaps
    most tellingly, what the parties did not include was a provision
    requiring that the transmission line be limited to being placed
    on   a    wood       pole   structure.       See    Atkinson    v.    Mentzel,     
    211 Wis. 2d 628
    , 638-39, 
    566 N.W.2d 158
     (Ct. App. 1997) (limiting
    the uses granted in an easement to anything other than retail
    sales because the easement granted "access for all uses of said
    property other than retail sales").
    ¶38    It is true that the right "to erect, maintain and
    operate        an    electric   transmission       line"   is   followed     by    the
    language "comprising wood pole structures."                     However, we must
    read      "comprising       wood   pole    structures"       within   the    context
    described above, which indicates that the parties did not intend
    to limit the transmission line to a wood pole structure.                           See
    Borek, 
    328 Wis. 2d 613
    , ¶¶31-32 (using the easement's title——
    "Easement for Flowage Rights"——and other language contained in
    16
    Nos.    2014AP2278 & 2014AP2279
    the deed of easement to interpret the meaning of "heirs and
    assigns").        We will not take "comprising wood pole structures"
    to place a limit on the dominant estate holder's right to use
    the servient estate for a transmission line when the entirety of
    the 1969 easement indicates there is no such limit:                                           the title
    of     the   1969      easement          ("Transmission               Line        Easement"),         the
    language     of   the       first       right       granted          to     the    dominant       estate
    holder, and the additional rights granted to the dominant estate
    to, inter alia, change and replace the transmission line and to
    take    actions     considered           necessary             for    the       operation        of   the
    transmission        line         indicate       the        dominant          estate       holder       has
    flexibility in its right to use the servient estate for the
    transmission line.
    3.     The Present Use Is Consistent with the Purpose of the 1969
    Easement
    ¶39   "The use of the easement must be in accordance with
    and confined to the terms and purposes of the grant."                                            Hunter,
    
    78 Wis. 2d at 343
    ;       see       also     Grygiel,             
    328 Wis. 2d 436
    ,         ¶36
    (interpreting          a    deed       of     easement          for         ingress       and     egress
    consistently        with         the    purpose           for    which          the     easement      was
    granted——access to the defendant's property).                                     In this case, the
    purpose      of   the       1969       easement           is    to        transmit       electricity.
    Therefore,        elevating             the     phrase           "comprising              wood        pole
    structures"       to       the    status       of     a    limitation             on    the     dominant
    estate's     ability        to     operate         the     transmission                line   would    be
    inconsistent with the underlying purpose of the 1969 easement,
    namely to transmit electricity.                            See AKG Real Estate, LLC v.
    17
    Nos.   2014AP2278 & 2014AP2279
    Kosterman, 
    2006 WI 106
    , ¶¶23-24, 
    296 Wis. 2d 1
    , 
    717 N.W.2d 835
    (refusing to allow the width of an easement for ingress and
    egress to determine that the easement's purpose was for building
    a public road because the easement width (66 feet) was the exact
    width needed to build a public road).
    ¶40      Interpreting the 1969 easement to permit the use of
    other   materials      such      as   steel    is    consistent    with   the    1969
    easement's purpose to transmit electricity because, as the PSCW
    recognized    when     it      approved   the    application      to   upgrade    the
    transmission      line,     transmission        of   the   necessary    voltage    of
    electric current using the original transmission line on the
    original structure was no longer feasible.
    4.    The PSCW Authorization
    ¶41      As   an   alternative        argument,     the   Garzas    argue    that
    Point 33 of the PSCW's authorization to upgrade the transmission
    line terminated the 1969 easement.               Point 33 states:
    That WEPCO and WPS shall remove the wires and
    structures of all existing 34 kV, 46 kV, 69 kV, and
    115 kV lines retired or taken out of operation as part
    of this project, and properly backfill all holes where
    structures are removed.    Easements for rights-of-way
    of removed lines shall be terminated, forfeiting all
    rights to the landowners.
    Like the circuit court, we conclude this argument is unavailing.
    As the circuit court said,
    it is clear that paragraph 33 only terminates the
    easements where the entire installation was removed,
    not where a new facility was installed replacing the
    old.   It would be nonsensical to find that the PSCW
    was ordering easements to be terminated where it was
    simultaneously   ordering  new   facilities  to   be
    constructed.
    18
    Nos.      2014AP2278 & 2014AP2279
    When    read    in   the    context      of    the      rest      of    the        PSCW's    1994
    authorization,       it    is   therefore         clear    that        the    PSCW     did    not
    intend to terminate rights-of-way for transmission lines being
    replaced but, rather, intended only to terminate rights-of-way
    for transmission lines that were being removed and not replaced.
    The rights of ATC under the terms of the 1969 easement are
    unaffected by this term.
    5.    Visual Blight
    ¶42     The   Garzas     also    claim       that       the     transmission          line
    causes      visual   blight;     however,          we   decline         to     address       this
    argument because it was not properly developed and argued.12                                  See
    State v. Gulrud, 
    140 Wis. 2d 721
    , 730, 
    412 N.W.2d 139
     (Ct. App.
    1987) (declining to address an argument because the defendant
    did not "explain his contention or develop his argument").
    IV.       CONCLUSION
    ¶43     We hold that, under the 1969 deed of easement, ATC has
    the right to enter the Garzas' property to both trim and remove
    the    trees    that      threaten     or     endanger         the     operation       of    the
    relevant       transmission      line.            The   1969      easement's          language
    "comprising wood pole structures" is language of description,
    not    circumscription,         and     as    such,       it    does         not    limit     the
    transmission line to being constructed on wood poles.                                  Rather,
    the 1969 easement grants to the dominant estate (here ATC) the
    right to make the change from wood poles to steel poles.                                        A
    12
    The Garzas raised visual blight in a few footnotes in
    their brief.
    19
    Nos.     2014AP2278 & 2014AP2279
    dominant estate has the right to do what is reasonably necessary
    to   enjoy   the   right   to   use   granted   in    a   deed    of    easement,
    provided no undue burden is placed on the servient estate.
    By   the   Court.—The     decision   of   the   court      of    appeals   is
    reversed.
    20
    Nos.   2014AP2278 & 2014AP2279
    APPENDIX
    21
    Nos.   2014AP2278 & 2014AP2279
    1