In re: Acquisition of Property of Ricardo M. Garza and Julie L. Garza:
American Transmission Company LLC and ATC Management, Inc., Defendants-Respondents-Petitioners. Ricardo M. Garza and Julie L. Garza, Plaintiffs-Appellants, American Transmission Company LLC and ATC Management, Inc., Plaintiffs-Respondents-Petitioners,
Ricardo Garza and Julie Garza, Defendants-Appellants.
Submitted on Briefs: Oral Argument: November 1, 2016
OF A DECISION OF THE COURT OF APPEALS Reported at: 366 Wis.2d
330, 873 N.W.2d 99
of Appeal: Circuit Court: county Waupaca Mark J. McGinnis
the defendants-respondents-petitioners, there were briefs by
Bryan J. Cahill, Katherine Stadler and Godfrey & Kahn, S.
C., Madison, and oral argument by Bryan J. Cahill.
the plaintiff-appellant, there was a brief by Frank J.
Jablonski and Progressive Law Group, LLC, Madison, and oral
argument by Frank Jablonski.
amicus curiae brief was filed by Cori Moore Lamont, Madison
for The Wisconsin Realtors® Association.
amicus curiae brief was filed by Bradley D. Jackson, James E.
Goldschmidt and Quarles & Brady, LLP, Madison for
Wisconsin Utilities Association.
MICHAEL J. GABLEMAN, J.
This is a review of an unpublished per curiam decision of the
court of appeals reversing the Waupaca County circuit
court's grant of summary judgment in favor of
American Transmission Company LLC and ATC Management, Inc.
(collectively referred to as "ATC"). Garza v.
Am. Transmission Co., Nos. 2014AP2278 & 2014AP2279,
unpublished slip op. (Wis. Ct. App. Nov. 19, 2015) (per
This case requires us to decide whether ATC has the right,
either under a 1969 deed of easement (hereinafter referred to
as the "1969 easement") or by means of a
prescriptive easement under Wis.Stat. § 893.28(2)
(2013-14),  to enter the property of Ricardo M. and
Julie L. Garza ("the Garzas") and trim some, and
remove other, trees which are threatening or endangering the
operation of one of ATC's electric transmission lines. We
hold that, under the 1969 deed of easement, ATC has the right
to enter the Garzas' property to both trim and remove the
trees that threaten or endanger the operation of the relevant
transmission line. This is so because, contrary to what the
Garzas argue, the 1969 easement is still in effect, thereby
allowing ATC to enter their property. The 1969 easement's
language "comprising wood pole structures" is
language of description, not circumscription, and as such, it
does not limit the transmission line to being constructed on
wood poles, thereby terminating the 1969 easement. Rather,
the 1969 easement grants to the dominant estate holder (here
ATC) the right to make the change from wood poles to steel
poles. Therefore, the decision of the court of appeals is
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Jerome and Betty Hertig ("the Hertigs") granted an
easement to the Wisconsin Public Service Corporation
("WPSC") by deed dated June 28, 1969. The 1969
easement was recorded on July 8, 1969.
The 1969 easement is titled "Transmission Line
Easement." It grants WPSC
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 of such kind as said Grantee,
its successors and assigns, may from time to time determine,
for transmitting electric current over and across [the
1969 easement continues with a property description of the
Hertigs' property and a description of the easement
The 1969 easement also provides:
Together with the right from time to time to enter upon said
premises for the purpose of erecting said line, and changing,
repairing, patroling, replacing and removing the same, and
the right from time to time to clear all brush and trees
within 40_ feet of each side of the center
line of such transmission line and the right from time to
time to cut down, trim or remove such trees on said premises
beyond such feet as in the judgment of Grantee, its
successors and assigns, may interfere with or endanger said
line, and to do any and all other acts necessary in the
proper erection, maintenance, safeguarding, and operation of
Pursuant to the 1969 easement, WPSC constructed a 69
transmission line on wood pole structures on the route
described therein. Following the 1969 easement, in 1977, the
Hertigs subdivided their property to create Woodland Park
In 1995, to meet the community's increased electrical
needs, WPSC upgraded the transmission line from a 69 kV line
to a double-circuit 69 kV/138 kV line to allow the
transmission line to carry more electricity. WPSC also
replaced the wood poles supporting the transmission line with
WPSC assigned the easement to ATC in 2001, and the assignment
was recorded the same day.
On September 30, 2004, the Garzas purchased Lot 1 of Woodland
Park Estates. There is no dispute that, at the time of
purchase, the Garzas were aware of the transmission line.
They saw the transmission line and received a copy of the
1969 easement with the paperwork when they purchased their
home. In addition, the 1969 easement was noted on their title
Because Lot 1 is in the southeastern corner of Woodland Park
Estates, the transmission line is not on the Garzas'
property. However, the Garzas' property is still impacted
by the 1969 easement (1) because it is located within the
80-foot strip of land wherein WPSC reserved the right to
clear all trees and brush and (2) because WPSC reserved the
right to trim and remove trees that "interfere with or
endanger" the transmission line even if the trees are
located outside the 80-foot strip of land.
In late 2010, ATC contacted the Garzas to notify them that it
needed to enter the Garzas' property to perform
maintenance for the operation of the transmission line, which
in this case required trimming and removing trees both on and
bordering the Garzas' property. The trimming and removal
was necessary because the trees threatened or endangered the
operation of the transmission line. As ATC explained in its
brief, trimming and removing the trees was necessary "to
ensure the safe and reliable operation of the transmission
line." It would also ensure the safety of anyone
who may need to perform work on a transmission line.
While ATC was able to perform some of the necessary work in
August 2011, the Garzas prevented ATC from completing its
maintenance project, and this suit followed.
The Garzas filed an inverse condemnation action on September
6, 2011, in the Waupaca County circuit court (L.C. No.
2011CV467), and on September 8, 2011, ATC filed a declaratory
judgment action (L.C. No. 2011CV478) in which it sought an
order from the court declaring that it had a right, under the
1969 easement and/or pursuant to the rights of prescriptive
easement under Wis.Stat. § 893.28(2), to enter the
Garzas' property and trim and remove the trees
threatening or endangering the operation of the transmission
On October 3, 2011, the Garzas filed counterclaims in which
they sought (1) a declaratory judgment that ATC did not have
the right to enter their property to trim and remove trees
and (2) alleged ...