A recent per curiam opinion from the Wisconsin Court of Appeals suggests that a power line may be required to get new easements when it updates from wooden structures to steel poles. Although the case is generally unciteable in Wisconsin courts, the implication is significant.
The case, Garza v. ATC, involved a landowner challenge to an electric transmission line company’s right to clear trees and vegetation on the Garza’s property. Appeal No. 2014AP2278, 2014AP2279, unpublished slip op. (Wis. Ct. App. Nov. 19, 2015) (per curiam). The company, ATC, claimed it had the right to do so under the terms of a 1969 easement over the land now belonging to the Garzas.
The easement granted ATC’s predecessor “the 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....” Id. ¶ 2. The easement language further granted ATC’s predecessor the “right from time to time to clear all brush and trees within 90 feet of each side of the center line of such transmission line...” Id.
Importantly, in the intervening decades, the power line was updated from one line on wood poles to two lines, now on steel poles.
The Garzas filed suit, arguing that ATC did not have the right to clear their land. ATC filed its own action in response.
Addressing the validity of the easement, the trial court ruled that replacing the steel support poles and adding additional line had not invalidated the original easement. Id. ¶ 7. The lower court reasoned that the easement contained language, which allowed ATC’s predecessor and its assignees with the ability to change transmission lines as needed or in response to technological advances. The circuit court granted ATC’s motion for summary judgment. The Garzas appealed.
As the court of appeals explained, the real issue here was whether the 1969 easement applied to the updated transmission line. The court seeks the intent of the easement. The primary source of that intent is within four corners of the conveyance. Id. ¶ 11. Here, concluded the court of appeals, the language of the easement demonstrated the scope of 1969 brush clearing easement was only for a wood pole easement. That language clearly did not include steel poles, as had been constructed. Id. ¶ 16.
First, the court of appeals rejected ATC’s contentions as to how the easement language should be interpreted. ATC argued, generally, that the general purposes of the easement shouldn’t be construed so narrowly. The company argued that the overall purpose of the 1969 easement was to allow for the construction and updating of a power line. Upgrading the line to two lines on steel poles fell under that purpose, argued ATC. However, the court of appeals responded, “[i]f ATC needs to place a steel pole structure, then it needs a new easement to enjoy that use.” Id. ¶ 18.
Second, the court of appeals rejected ATC’s argument that it had acquired a prescriptive easement to continue clearing along the line. The company alleged that even if the specific terms of the easement did not apply, the company still had an easement by virtue of its use of the property. By maintaining the line for over ten years, argued ATC, it had acquired the right to continue to do so under Wis. Stat. § 893.28(2). The court of appeals rejected ATC’s prescriptive easement argument, explaining that ATC had failed to show proof in the record that the company had in fact cleared vegetation in the area at issue for the past 10 years. Id. ¶ 22.
So what does this mean? Well, it’s a per curiam opinion. There’s no precedential value and it may not be cited in court documents. Nevertheless, the opinion may provide some insight into the thought process the court would use in analyzing other power line easement language. Landowners and their attorneys might look closer at the specific language of older utility easements on their property. By the same token, condemning authorities may look closer at the terms they choose to include in acquisition documents. The case is a reminder that those terms may be dispositive of issues arising decades later. There may be a fine line between describing a utility, roadway, or purpose of an easement and limiting them to specific parameters.
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