Enbridge Energy v. Johnson, No. 2007AP2492 (Wis. App. 9/16/2008)
| Decision Date | 16 September 2008 |
| Docket Number | No. 2007AP2492.,2007AP2492. |
| Parties | Enbridge Energy, Limited Partnership, a Delaware Limited Partnership, Plaintiff-Respondent, v. Peter A. Johnson and Karen A. Johnson Peters, a/k/a Karen Peters, a/k/a Karen (Johnson) Peters, Defendants-Appellants. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Sawyer County: NORMAN L. YACKEL, Judge. Affirmed.
Before Hoover, P.J., Peterson and Brunner, JJ.
Peter Johnson and Karen Johnson Peters (collectively, Johnson) appeal a summary judgment granted in favor of Enbridge Energy. Johnson argues that Enbridge's use of land outside an easement and construction of additional pipelines within the easement constitute a taking that calls for the commencement of condemnation proceedings. Alternatively, Johnson challenges the easement as unenforceable and against public policy. We reject Johnson's arguments and affirm the judgment.
¶ 2 Johnson owns two parcels of real property in Sawyer County. At the time Johnson acquired the property, it was encumbered by an easement that had been granted to Lakehead Pipe Line Company, Inc., Enbridge's predecessor in interest, in 1968. The initial pipeline was constructed on the property in 1968 and a second pipeline was constructed in 1997.
¶ 3 In 2006, Enbridge notified Johnson that it would be exercising its easement rights to construct a third and fourth pipeline parallel to the existing pipelines. Consistent with its interpretation of rights granted under the easement, Enbridge determined it needed to use a 100-foot strip of land immediately adjacent to the right-of-way during construction of the pipelines. When Johnson balked at Enbridge's use of the adjacent land, Enbridge obtained a temporary restraining order and filed the underlying declaratory judgment action. Johnson counterclaimed for inverse condemnation and trespass, asserting the easement is unenforceable. Following a hearing, the circuit court enjoined Johnson from interfering with construction of the pipelines. After additional discovery, the parties moved for summary judgment. The court granted summary judgment in favor of Enbridge and this appeal follows.
¶ 4 This court reviews summary judgments independently, applying the same standards as the circuit court. Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31 (Ct. App. 1997). Summary judgment is granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987).
¶ 5 Johnson argues that Enbridge's use of the 100-foot strip of land adjacent to the right-of-way constituted a "taking," thus requiring the commencement of condemnation proceedings. Condemnation proceedings are appropriate when an entity with condemning authority is occupying property "without the right to do so." See WIS. STAT. § 32.10. Here, the easement conveys, in relevant part:
A right-of-way and perpetual easement to construct, operate, maintain, inspect (including aerial patrol), remove, replace and reconstruct one or more pipelines together with valves, fitting, protective apparatus and all other equipment and appurtenances as may be convenient in connection therewith for the transportation of oil, other liquid hydrocarbons, and any product or by-product thereof, or any material or substances which can be conveyed through a pipeline on, over, under and across [the subject property], together with the right to clear and to keep cleared the Right-of-Way so as to prevent damage or interference with its efficient operation and patrol. The Grantor further grants the Grantee the right of ingress and egress to and from the Right-of-Way for all purposes convenient or incidental to the exercise by the Grantee of the rights herein granted, together with the right to use the lands immediately adjacent to each side of the Right-of-Way as is reasonably required during construction. (Emphasis added).
Because the easement grants Enbridge the right to use land immediately adjacent to the right-of-way, condemnation is not necessary.
¶ 6 Johnson nevertheless challenges the easement as unenforceable and against public policy, claiming the ambiguity of the term "lands immediately adjacent" affords Enbridge unlimited access to Johnson's property. On the contrary, the easement limits Enbridge to the "use of lands immediately adjacent ... as is reasonably required during construction." If there were a disagreement between the parties over what amount of land was "reasonably required during construction," that dispute could have been resolved by the circuit court. Here, Johnson does not contest Enbridge's claim that 100 feet was reasonably required under the existing circumstances but, rather, challenges the general notion of what may be "reasonably required" under various hypotheticals not relevant to the present case. This court will not decide issues based on hypothetical or future facts. Pension Mgmt., Inc. v. Du Rose, 58 Wis. 2d 122, 128, 205 N.W.2d 553 (1973).
¶ 7 Next, Johnson asserts the parties could not have intended the use of "significant amounts" of land adjacent to the right-of-way because the easement contains "no method of compensation" for Enbridge's use of those lands. The term "significant amounts," however, is relative and, as noted above, any dispute over what is "reasonably required during construction" could be resolved by the court. In any event, with respect to compensation, the easement provides:
The Grantee shall ... pay to the Grantor for the rights herein granted the sum of $130.00 which when added to the sum paid...
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