Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Acquisition of Property of Garza

Supreme Court of Wisconsin

April 13, 2017

In re: Acquisition of Property of Ricardo M. Garza and Julie L. Garza:
v.
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,
v.
Ricardo Garza and Julie Garza, Defendants-Appellants.

          Submitted on Briefs: Oral Argument: November 1, 2016

         REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 366 Wis.2d 330, 873 N.W.2d 99

         Source of Appeal: Circuit Court: county Waupaca Mark J. McGinnis Judge.

          For 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.

          For the plaintiff-appellant, there was a brief by Frank J. Jablonski and Progressive Law Group, LLC, Madison, and oral argument by Frank Jablonski.

          An amicus curiae brief was filed by Cori Moore Lamont, Madison for The Wisconsin Realtors® Association.

          An 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.

         ¶1 This is a review of an unpublished per curiam decision of the court of appeals reversing the Waupaca County circuit court's[1] grant of summary judgment in favor of American Transmission Company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 Transmission Co., Nos. 2014AP2278 & 2014AP2279, unpublished slip op.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 curiam).

         ¶2 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), [2] 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.[3] 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 reversed.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         ¶3 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.

         ¶4 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[4] 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 Hertigs' property.]

         The 1969 easement continues with a property description of the Hertigs' property and a description of the easement route.

         ¶5 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, patrol[1]ing, 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 said line.

         ¶6 Pursuant to the 1969 easement, WPSC constructed a 69 kV[5] transmission line on wood pole structures on the route described therein.[6] Following the 1969 easement, in 1977, the Hertigs subdivided their property to create Woodland Park Estates subdivision.

         ¶7 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[7] line to allow the transmission line to carry more electricity. WPSC also replaced the wood poles supporting the transmission line with steel poles.

         ¶8 WPSC assigned the easement to ATC in 2001, and the assignment was recorded the same day.

         ¶9 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 insurance policy.

         ¶10 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.

         ¶11 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."[8] It would also ensure the safety of anyone who may need to perform work on a transmission line.

         ¶12 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.

         ¶13 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 line.

         ¶14 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.