In re Garza (WI)

Summary: Deed granting easement to maintain electric transmission lines was not contingent on the wood poles used to maintain the lines. Easements allow for the innovation of technology.

In re Garza, 2017 WI 35, 374 Wis.2d 555, 893 N.W.2d 1 (Wis. 2017).

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Facts: In 2001, the Wisconsin Public Service Corporation (“WPSC”) assigned a deed to the American Transmission Company (“ATC”). The deed granted ATC an easement allowing it to enter the servient property to trim or remove any trees which threaten or endanger ATC’s electric transmission lines. However, prior to granting this deed, WPSC replaced the wood pole structures holding the lines with steel poles.

In 2010, ATC notified the Garzas that it would enter their property to perform maintenance for the operation of the transmission lines. To maintain lines, ATC would need to trim and remove some of the trees endangering the lines. ATC managed to complete some of the work, but the Garzas refused to let ATC perform the entire maintenance project.

This suit followed those events. The Garzas filed an inverse condemnation action on September 6, 2011, and ATC filed a declaratory judgment action two days later. ATC sought a judgment declaring that it had a right under either the 1969 easement or pursuant to the rights of prescriptive easements under Wis. Stat. § 893.28(2). The Garzas filed counterclaims in which they sought a declaratory judgment that ATC did not have the right to enter their property to trim and remove trees, arguing that the deed’s language – “comprising wood pole structures” – was language of circumscription. The circuit court found that, under the 1969 easement, ATC had the right to enter and conduct maintenance because the easement also allowed ATC to replace the wood poles with steel poles. The court of appeals reversed the circuit court’s decision in favor of ATC, stating that the easement was limited to the transmission line being constructed on a wood pole structure. The court of appeals reasoned that since the structure upon which the easement was founded no longer existed, neither did ATC’s rights to enter the Garzas’ property.

Holding: Reversed. The Supreme Court of Wisconsin held that ATC, as assignee of the 1969 deed, had the right to enter property, despite the replacement of wood poles with steel poles. In deciding whether the absence of the wooden poles rendered ATC’s activities prohibited, the Court first noted that the grantee of an easement has a right to do what is reasonably necessary to enjoy the easement. Included in the grantee’s rights is the freedom to implement advances in technology. The court elaborated on this rule by providing examples such as one case where an easement for access that allowed a grantee to enter the land by horse and carriage, equally allowed the grantee to enter the land by automobile. Here, the easement allows the grantee to replace the wooden poles with steel poles, since using steel offers more benefits than using wood. In light of this allowance of technological advancement, the court also noted that the purpose of the easement was for maintenance of the electric lines. Thus, the ‘wood pole’ language was language of description, rather than circumscription. Finally, the court added that allowing the replacement of wood for steel was further corroborated by a provision in the easement allowing the grantee to update and maintain the structures as necessary to maintain and operate the electrical lines.

By: ATG Underwriting Department | Posted on: Fri, 09/08/2017 - 1:28pm