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Waupaca couple’s case could change more than a century of easement law

By: Erika Strebel, [email protected]//August 3, 2016//

Waupaca couple’s case could change more than a century of easement law

By: Erika Strebel, [email protected]//August 3, 2016//

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Ricardo and Julie Garza stand under high voltage transmission lines that run along their property in Waupaca. About 60 trees were removed from their property when the lines were installed. (Staff photo by Kevin Harnack)
Ricardo and Julie Garza stand under high-voltage transmission lines that run along their property in Waupaca. About 60 trees were removed from their property when the lines were installed. (Staff photo by Kevin Harnack)

State Supreme Court to hear arguments in case later this year

The Wisconsin Supreme Court’s next term will bring before the justices a case that could change more than a century of case law involving the scope of utility easements.

The outcome in Garza v. American Transmission Company LLC promises to have consequences not only for real-estate transactions around the state but also for the thousands of easements that were created before the adoption in 1975 of a law meant to govern rights of way for high-voltage transmission lines.

The case before the court involves the Waukesha-based American Transmission Co. – also known as ATC – and a pair of Waupaca residents, Ricardo and Julie Garza. ATC, which owns and operates a large part of Wisconsin’s electrical grid, became the target of a lawsuit filed by the Garzas after trimming and removing trees at the couple’s house at 460 Woodland Circle, Waupaca.

At the heart of the dispute is an easement giving utility crews the right to perform maintenance on and around a high-voltage transmission line running through the couple’s property. The legal language establishing that easement makes specific reference to the “wood pole structures” that had once held up the line.

Those poles were removed in 1995, and were replaced with poles made of steel. The Garzas are now asking if the use of a material not specified in the easement language substantially altered ATC’s rights concerning their property.

Similarly, the Garzas note that the easement was established for the low-voltage transmission line that had once traversed their property. The current lines, they point out, are high voltage.

The dispute has been going on for about six years. The couple first received notice in October 2010 that contractors would be coming to clear brush and vegetation away from the line.

Ricardo Garza said that although he never believed ATC had a right trim the trees or be on his property, he tried to negotiate with the company. He asked for a fence to be put up or for some vegetation to be left behind.

Despite those attempts, a utility crew came out in August 2011 and cut down more than 60 trees on the Garzas’ property before Ricardo Garza was able to stop them. Some of the trees were about 20 years old.

“There was a forest there, and now there’s a field,” he said.

Turning for help to the Madison attorney Frank Jablonski, the Garzas sued ATC later the same year. Their main contention was that the company had no right to encroach on their property for those purposes.

ATC counter-sued, asking for a court declaration that it was merely acting within its easement rights when it removed and trimmed the trees.

A trial court sided with ATC, but the couple was successful on appeal, persuading appellate judges to rule that ATC had in fact overstepped its easement rights.

The Wisconsin Supreme Court agreed in April to review the case. The court now has an opportunity to clarify whether a holder of a utility easement has an unlimited ability to do what it wishes with the rights it has been granted or whether it must get a new easement if it makes changes to how it uses those rights.

ATC is arguing it was allowed to clear and trim trees because there was nothing in the easement language for the Garzas’ property  that specifically limited its rights to a particular type of transmission line. The company is also arguing that the common law allows utility easements to change in response to advances in technology.

Bryan Cahill, an attorney for ATC, declined to comment for this story. The company’s arguments are receiving support from the Wisconsin Utilities Association, which was recently granted permission by the court to file an amicus brief in the case.

Should the Garzas prevail, according to the association, utilities will find themselves exposed to more litigation. Suddenly, the simple act of replacing utility equipment would expose any related easement to legal challenges.

Utilities would not be able to change the material of a utility pole without first negotiating new easement terms. Nor would they be able to rely on existing easements when they had replaced low-voltage lines with high-voltage lines.

The Garzas, in defending the Court of Appeals’ decision, are arguing in the main that the language of ATC’s easement unambiguously indicates that ATC only had the right to maintain and repair a low-voltage transmission line, not high-voltage transmission lines.

Jablonski said the Court of Appeals decision was entirely consistent with 135 years of Wisconsin case law involving easements.

“When you change the nature of the facility you change the nature of the impact, and you need to compensate the landowner for that,” Jablonski said.

Like ATC, the Garzas are not fighting this case alone. Among the outside groups lending the couple support is the Wisconsin Realtors Association, which filed a brief supporting the Garzas while they were still before the Court of Appeals.

A low-voltage transmission line is very different from high-voltage transmission lines, said Cori Lamont, director of corporate and regulatory affairs for the association, which will be submitting an amicus brief to the high court this month.

“High-voltage transmission lines are not just a little thing,” she said. “It’s not just about a transition from wood to steel.”

She noted that high-voltage transmission lines can cause various hardships for owners of adjacent properties, harming their health and lowering their property values.

“It’s an important discussion to have,” Lamont said. “We’re hoping that the Court of Appeals decision stands.”

The high court will hear oral arguments in the case later this year.

“This isn’t just about me anymore,” Ricardo Garza said. “This is about precedent. I do joke that I was never going to be rock-star famous, but someone will probably refer to this case long after I’m gone.”

 

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