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  • March 02, 2022

    Supreme Court: Company has Prescriptive Right to Use Gas Line Under House

    A company that obtained a written easement in 1980 to install a gas line beneath a homeowner’s property obtained a prescriptive right to continue using the gas line in 1990, the Wisconsin Supreme Court has ruled.

    Jeff M. Brown

    Pipes Next To A Pile Of Dirt And A Trench Behind A House

    March 2, 2022 – A company that obtained a written easement in 1980 to install a gas line beneath a homeowner’s property obtained a prescriptive right to continue using the gas line in 1990, the Wisconsin Supreme Court has ruled.

    In Bauer v. Wisconsin Energy Corporation, 2019AP2090 (Feb. 24, 2022), the supreme court unanimously held that a circuit court properly granted summary judgment against a landowner who bought the property in 1996 with no knowledge of the gas line.

    Gas Line Laid in 1980

    Wisconsin Energy Corporation (WEC) sank a natural gas line pipe beneath a lakeside property owned by Virginia Garside in July 1980. Garside gave WEC written permission to install the line.

    In 1984, WEC relocated the gas line on the property. In 1988, WEC replaced 84 feet of pipe, and in 1989 the company moved the line again. The flow of gas to the neighboring house was never interrupted by service the company performed on the line.

    Claudia Bauer bought the Garside property in 1996. She had no actual knowledge of the pipe running beneath the property.

    Request for Easement

    In 2014, WEC asked Bauer if she would grant an easement to allow it to install a larger pipe. It was the first Bauer had heard of the pipe, and she said ‘No’ to the easement.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Bauer sued WEC in Walworth County Circuit Court. She asked the circuit court to declare that WEC had no easement to operate the gas line; she also brought claims of trespass and ejectment.

    WEC countersued, seeking a declaration that it had obtained a prescriptive easement under Wis. Stat. section 893.28(2).

    The circuit court declared that WEC had obtained a prescriptive easement. The circuit court granted summary judgment for the company and dismissed Bauer’s claims for trespass and ejectment.

    Bauer Files Motion to Reconsider

    Bauer asked the court to reconsider the ruling.

    She argued that the court had neglected to consider her constitutional right to just compensation for the taking of her property or a court-fashioned remedy to address her claimed injuries. Bauer had not alleged the constitutional right during the proceedings that led to the summary judgment ruling.

    In her reply brief, Bauer made another new argument.

    She argued that the relocations of the pipe in 1984 and 1989 and the replacement of section of pipe in 1988 created a genuine issue of material fact regarding whether WEC had continuously used the gas line.

    The circuit court denied Bauer’s motion for reconsideration, ruling that Bauer had neither presented new evidence nor demonstrated manifest error in its earlier ruling.

    Reconsideration Motion Was Properly Denied

    In an opinion by Justice Jill Karofsky, the supreme court agreed with the circuit court.

    In filing for reconsideration, Bauer had neither produced new evidence nor demonstrated that the circuit court’s summary judgment ruling was manifest error, Justice Karofsky explained.

    “Simply stated, ‘a motion for reconsideration is not a vehicle for making new arguments or submitting new evidentiary materials [that could have been submitted earlier] after the court has decided a motion for summary judgment,’” Justice Karofsky wrote. “Yet Bauer’s reconsideration motion did just that, according to the circuit court.

    “We see no error in the circuit court’s rationale that would justify reversal … Bauer lacked necessary factual predicates on both constitutional claims and offered no newly discovered evidence warranting reconsideration.”

    Statute vs. Common Law

    Under section 893.28(2), a public utility obtains a prescriptive right to continue its use of rights in another’s property if it continuously uses those rights for at least 10 years.

    At common law, a party asserting a prescriptive right had to prove three elements missing from section 893.28(2):

    • That the use was adverse or hostile and inconsistent with the property owner’s rights;
    • Continuous use for 20 years; and
    • That the use was visible, open, and notorious or occurred under an open claim of right.

    The parties agreed that the legislature had left the first element out of the statute so that permissive uses could ripen into prescriptive rights, and they did not dispute that the legislature had halved the common law’s vesting period.

    But they did dispute the effect of the legislature’s omission of the third element.

    Bauer argued that if the legislature didn’t want the “visible, open, and notorious” elements to apply, it should have done more than enact a statute silent on that count – it should have been “clear, unambiguous and peremptory.”

    WEC argued the omission of the element was enough to deny it any legal effect. Alternatively, the company argued that the “visible, open, and notorious” and “under an open claim of right” were but subparts of the omitted first element regarding adverse or hostile use.

    Context Cuts Against Bauer’s Argument

    The supreme court agreed with WEC.

    Context made clear that “open claim of right” element was a subpart of the first element regarding adverse or hostile use,” Justice Karofsky explained.

    “As Bauer concedes, the legislature drafted section 893.28(2) to allow a permissive use to ripen into a prescriptive right. But an ‘open claim of right’ is the exact opposite of a permissive use. The legislature, then, necessarily had to remove both the adversity and the claim-of-right requirements to allow a permissive use to ripen into a prescriptive right.”

    Assuming (without deciding) that section 893.28(2) required WEC’s use to be visible, open, and notorious for 10 years, the supreme court held that WEC met both conditions.

    Use was Continuous

    Bauer’s arguments that the repairs to the gas line interrupted the 10-year period were off the mark, Justice Karofsky wrote.

    “No evidence suggests that the character of the use—supplying gas along a single conduit—ever changed. Nor did these repairs increase the burden on the landowner; any land rendered unbuildable by the original line merely remained so.”

    And the fact Bauer had no actual knowledge of the gas line beneath her property was immaterial, because her predecessor in interest gave written permission to WEC to install the line 16 years before Bauer bought the property.




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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2022 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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