November 2011 Vol. 4, No. 10




Pahl v American Transmission Company, 2010 AP 1344 (Wis Ct App, 2011).

Facts:In 1964, Sylvia and Erwin Pahl sold an easement to Wisconsin Electric Power Company (WEPCO) for the construction of two electric transmission lines on their property. Gary and Judith Pahl later inherited the property. The easement agreement stated that WEPCO should not construct the two transmission lines at the same time. WEPCO constructed the first transmission line in the late 1960s.

In 2001, American Transmission Company (ATC) purchased the easement and the first transmission line from WEPCO. In 2002, the Wisconsin Public Service Commission authorized ATC to construct a second transmission line within the easement. The line was completed in 2005 and located farther to the north than was initially intended but still within the easement. The Pahls were no longer able to use the northern portion of the easement as an auto salvage yard and tree nursery. During construction, ATC attempted to purchase an additional easement north of the 1964 easement area. The Pahls' neighbors agreed but the Pahls did not.

The Pahls sued ATC claiming that, among other things, (1) the easement was void as unconscionable against public policy; (2) the easement was extinguished either through abandonment or by adverse possession; and (3) ATC violated the terms of the easement and was required to compensate the Pahls for use of their land. The circuit court granted summary judgment to ATC against all of the Pahls' claims. The Pahls appealed.

Holding:Affirmed. First, the easement was not void as against public policy simply because ATC did not immediately exercise its rights.

Second, the easement was not abandoned by non-use. Abandonment requires an affirmative act. ATC did not have an affirmative legal obligation to construct the second transmission, and the easement agreement permitted the second line to be constructed "some years after the first line." ATC also built the second transmission quickly after it was authorized to do so, which did not evince abandonment. Additionally, the Pahls could not adversely possess the easement rights back from ATC. The court noted that "an easement cannot be extinguished by prescription when the owner of the servient estate recognizes the easement's existence."

Third, ATC did not violate the terms of the easement agreement by placing the transmission line too close to the northern boundary of the right-of-way because the agreement unambiguously recognized that ATG had discretion about where to place the transmission line within the easement.

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