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  • WisBar News
    April 13, 2017

    Transmission Line Company Has Right to Enter Private Property Under 1969 Easement

    Joe Forward

    Transmission Lines

    April 13, 2017 – A 1969 easement allowed the Wisconsin Public Service Corp. to erect and maintain “wood pole structures” on private property for electric transmission lines. Recently, the Wisconsin Supreme Court rejected a challenge to the easement.

    Ricardo and Julie Garza argued that the easement, which impacted their property, is not valid because it applied to “wood pole structures” and those poles were replaced with steel poles in 1995. Thus, the Garzas asserted, the American Transmission Co. (ATC), successor to easement rights, did not have the right to enter their property to trim and remove trees and bushes near the lines.

    But in Garza v. American Transmission Co., 2017 WI 35 (April 13, 2017), the supreme court unanimously ruled that the easement is still in force and ATC had the right to enter the Garzas’ property to maintain the overgrown area near the transmission lines.

    “We hold that, under the 1969 deed of easement, ATC has the right to enter the Garzas’ property both to trim and remove the trees that threaten or endanger the operation of the relevant transmission line,” wrote Justice Michael Gableman for the court.

    “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, thereby terminating the 1969 easement.”

    The Deed of Easement

    Almost 48 years ago, on June 28, 1969, Jerome and Betty Hertig granted an easement to the Wisconsin Public Service Corp. (WPS) for “the perpetual right, privilege and easement to erect, maintain, and operate an electric transmission line, comprising wood pole structures … and other usual appendages and appurtenances of such kind. …”

    The grantee and successors and assigns could, from time to time, determine what appendages and appurtenances would be needed to transmit electric current over the Hertig property applicable to the easement. And the easement allowed the grantee to enter the property to clear brush from time to time, within 40 feet of each side of the line.

    WPS assigned the easement to ATC in 2001, about six years after WPS replaced the wood poles with steel poles. The Garzas purchased the subject Hertig property in 2004. They received a copy of the 1969 easement and bought the property subject to it.

    The transmission lines were not actually located on the Garzas' property, but their property was within the 80-foot circumference of land that ATC could access to trim trees and brush from time to time to ensure the safety of the transmission lines.

    Civil Action

    ATC notified the Garzas that they would be entering their property to trim trees and brush around the power line. The Garzas filed an inverse condemnation action before ATC could finish the work. ATC countered for a declaratory judgment order.

    The circuit court in Waupaca County upheld the easement. But the Court of Appeals reversed, concluding the easement only applied to “wood pole structures,” not steel.

    But the Wisconsin Supreme Court unanimously reversed the appeals court, concluding the easement language did not limit the easement to wood pole structures.

    “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,” Justice Gableman wrote. “We conclude that the change from wood to steel poles was a reasonable change made in order to take advantage of developments in technology.” However, the court noted that making such upgrades is not unlimited.

    That is, the easement holder may not cause unreasonable damage to the servient estate and interfere with the servient estate’s right to enjoy the property.

    “The change from wood to steel placed no undue burden on the servient estate,” wrote Gableman, noting that steel poles don’t occupy more space and fall within the easement. Thus, the Garzas did not show an undue burden was placed on them.

    The court also ruled that the “wood pole structure” easement language is descriptive and did not prevent the grantee from switching to steel because it says the grantee can determine, from time to time, what materials would be needed to maintain the line.

    “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. …” Gableman wrote.

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