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  • WisBar News
    November 23, 2015

    Appeals Court Says Power Company had Easement for Wood Poles, Not Steel

    Joe Forward

    Nov. 23, 2015 – Property owners who said the American Transmission Company (ATC) did not have a valid easement to update and maintain power lines recently won at the state appeals court, which ruled that the easement only covered wood poles, not steel.

    The circuit court upheld the easement, originally granted in 1969 to the Wisconsin Public Service Corporation (WPSC). The instrument granting the easement provided that the WPSC, and successors and assigns, had a permanent easement to “erect, maintain, and operate an electric transmission line, comprising wood pole structures. ...”

    The easement also said that WPSC could enter the easement to clear all brush and trees within 40 feet on either side of the transmission line. In 1994, the WPSC upgraded the transmission line, installing steel poles instead of wood poles to support the conductors.  

    WPSC transferred the easement to American Transmission Company in 2001. Three years later, Ricardo and Julie Garza bought the property burdened by the easement.

    ATC notified the Garzas in 2011 they needed to remove or trim vegetation on their property that was within the easement, and that ATC planned to remove some trees.

    The Garzas refused to remove the vegetation. However, ATC cut down trees before both parties filed lawsuits concerning the easement’s validity and whether the Garzas were required to remove vegetation located within 40 feet of the transmission line.

    The circuit court ruled the easement required the Garzas to remove vegetation. But in Garza v. American Transmission Company LLC, 2014AP2278 (Nov. 19, 2015), the District IV Wisconsin Court of Appeals issued a per curiam decision in favor of the Garzas, reversing the circuit court.

    The court said the easement language was clear and there was no reason to consult outside evidence, beyond the easement itself, to determine the intent of the parties.

    “The instrument’s plain language permits the construction, maintenance, and operation of a transmission line that is comprised of wood pole structures" and allows ATC to clear trees and brush within 40 feet of “such transmission line," the court wrote.

    “The plain language of the 1969 easement does not convey the right to clear vegetation within 40 feet of a transmission line comprised of steel pole structures," the court noted. "Accordingly, we conclude that removal of vegetation on that portion of the Garzas’ property that is within forty feet of the 1995 transmission line is outside the scope of the 1969 easement.”

    The court rejected ATC’s argument that the easement granted the broad right to select the “kind” of pole structures that could be used, suggesting that such language did not grant the right to convert from wood to steel poles, only to select different kinds of wood.

    ATC also argued unsuccessfully that ruling in favor of the Garzas would frustrate the easement’s purpose. “The self-evident purpose of the easement is to authorize a wood pole structure, with appropriate appurtenances. Limiting the easement to placement of wood pole structures is not inconsistent with that purpose,” the court wrote.

    The panel also rejected ATC’s argument that even if the 1969 easement was not effective, ATC possessed a prescriptive easement under Wis. Stat. section 893.28(2), which allows some telecommunications companies to take land by adverse possession after 10 years.

    Even if ATC had a prescriptive easement to erect, maintain, and operate the 1995 transmission line, the court explained, ATC did not argue or submit evidence that it continuously removed vegetation from those areas of the Garza property for 10 years.

    “Accordingly, we conclude that ATC has not established that it has a prescriptive easement to remove vegetation from that portion of the Garzas’ property that is in dispute,” the court ruled in the opinion, which will not be published.

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