Ricardo M. Garza v. American Transmission Co.

2017 WI 35SUPREME 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 99OPINION 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 35NOTICE
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unpublished per curiam decision of the court of appeals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.
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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