Please ensure Javascript is enabled for purposes of website accessibility

01-0233 Gallagher v. Grant-Lafayette Electric Cooperative

By: dmc-admin//October 29, 2001//

01-0233 Gallagher v. Grant-Lafayette Electric Cooperative

By: dmc-admin//October 29, 2001//

Listen to this article

“Because the court erroneously excluded evidence of trespass and damages within the right-of-way, and that exclusion was the basis for the dismissal of the Gallaghers’ claims for damages within the right-of-way, we are satisfied that the proper course is to reverse the dismissal of those claims and remand for trial on the Gallaghers’ claims for trespass and negligence, which will include a trial on the issue of whether the Cooperative’s use of a herbicide was reasonably necessary to maintain its power lines. On remand, the court shall reconsider in light of our decision the Cooperative’s motion to exclude evidence on the need for the Gallaghers’ consent, and any other motions in limine that are affected by our decision on the legal standard for determining the scope of the Cooperative’s easement.”

“We hold that the Cooperative’s easement includes the right to take those steps reasonably necessary to maintain its power line, which includes the right to take those steps reasonably necessary to prevent interference with the wires. Accordingly, its use of a herbicide to clear all the trees and vegetation from under the power line was within the scope of its easement only if it met this standard. Because the trial court applied an incorrect legal standard in excluding evidence on trespass, on damages within the right-of-way, and on the need for the Gallagher’s consent, we reverse those rulings and the dismissal of the claims for damages within the right-of-way. “

Further, we conclude that the trial court’s ruling excluding evidence of discomfort and annoyance because the plaintiffs had not pleaded a nuisance claim was based on an incorrect legal standard and must be reversed.

Reversed and remanded with directions.

Recommended for publication in the official reports.

Dist IV, Lafayette County, Johnston, J., Vergeront, P.J.

Attorneys:

For Appellant: Frank M. Tuerkheimer, Madison; James Friedman, Madison

For Respondent: Stuart G. Mondschein, Madison; Denis R. Vogel, Madison

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests