Gallagher v. Grant-lafayette Electric Coop. n/k/a Scenic Rivers Energy Coop.
| Decision Date | 09 July 2001 |
| Docket Number | Case No. 01-0233 |
| Citation | 249 Wis.2d 115,637 N.W.2d 80,2001 WI App 276 |
| Parties | James M. Gallagher and Patricia A. Gallagher, Plaintiffs-Appellants, v. Grant-Lafayette Electric Cooperative n/k/a Scenic Rivers Energy Cooperative, and Federated Rural Electric Insurance Corporation, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Frank M. Tuerkheimer and James A. Friedman of LaFollette Godfrey & Kahn of Madison.
On behalf of the defendants-respondents, the cause was submitted on the brief of Denis R. Vogel of Wheeler, Van Sickle & Anderson, S.C. of Madison.
Before Vergeront, P.J., Roggensack and Deininger, JJ. P1. VERGERONT, P.J. James and Patricia Gallagher appeal the trial court order dismissing their claims of trespass and negligence againstGrant-Lafayette Electric Cooperative. 1 Their claims arose out of the Cooperative's use of a herbicide 2 to clear trees and brush under its electric power line on the Gallaghers' property. We conclude the Cooperative's right-of-way easement included those steps reasonably necessary to maintain its power line and that the trial court erred in not correctly applying this standard in granting certain of the Cooperative's motions to exclude evidence. We also conclude that the trial court erred in deciding that damages for discomfort and annoyanceare not available in an action for trespass. Accordingly, we reverse and remand as more specifically explained below.
P2. The Gallaghers maintain a dairy operation on a 135-acre farm in Darlington, Wisconsin. The Cooperative provided electric power to the Gallaghers through a power line, part of which runs along a tree line on the western border of the Gallaghers' property, and part of which runs along a tree line on the northern border. In applications for membership in the Cooperative, the Gallaghers granted the Cooperative "a reasonable right[-]of[-]way easement." 3 For purposes of this appeal, it is not disputed that in May 1996, Cooperative employees, using backpack sprayers, applied the chemical "SpikeTM" to trees and brush underneath the Cooperative's power line on the Gallaghers' property.
P3. The Gallaghers' amended complaint alleged that the Cooperative entered their property without permission and applied the herbicide contrary to their explicit request. The complaint alleged the herbicide killed 130 trees, which served as a windbreak and source of shade for the cattle and added beauty to the property, other plants under the Cooperative's power line, and an adjacent clover field; and it also caused the death of five dairy cows that grazed on the area sprayed. The amended complaint asserted claims of negligence and intentional and negligent trespass, and sought compensatory and punitive damages.
P4. The Cooperative's answer admitted that it had entered the Gallaghers' property and applied aherbicide under its power line to control trees and brush, but denied entering the property without their consent, and denied that the Gallaghers had asked it not to spray herbicides on their trees. As an affirmative defense, the Cooperative asserted that it had a right to be on the premises and to remove trees and other vegetation under its power line.
P5. The court's scheduling order set a jury trial for November 17, 1999, with dispositive motions due by August 16, 1999. Neither party filed dispositive motions by that date. On November 1, 1999, the parties each filed trial briefs and motions in limine pursuant to the scheduling order. Among other motions, the Cooperative sought to exclude evidence of trespass, evidence of damages within the right-of-way, and testimony regarding any "requirement" that it seek the Gallaghers' permission to apply a chemical to the right-of-way. The Cooperative's position was that it had a right-of-way on the Gallaghers' property based on eminent domain; it therefore had the right to act reasonably to maintain its right-of-way without the Gallaghers' consent and it had acted reasonably. One of the Gallaghers' motions in limine asked the court to exclude testimony of the Cooperative's expert witnesses that the Cooperative had the right to apply a herbicide or otherwise destroy the trees because, the Gallaghers asserted, the issue of the Cooperative's right was a legal one for the court to decide and not the proper subject of expert testimony.
P6. On November 8, 1999, two days before the pretrial conference, the Cooperative filed a document entitled "Defendant's Reply Brief to Plaintiffs' Trial Brief and Defendant's Motion for Partial Summary Judgment Based Upon the Position Taken by Plaintiffs." In the motion for partial summary judgment, the Cooperative asked the court to rule as a matter of lawthat the Cooperative had a right to maintain its power line and that no trespass occurred with respect to the maintenance within the right-of-way. The Cooperative also filed various factual submissions, some of which addressed the Gallaghers' motions in limine and some of which addressed the reasonableness of the Cooperative's conduct.
P7. At the pretrial conference, in the course of deciding the parties' motions in limine, the court ruled that the Cooperative had the right to keep its easement clear of trees and brush by using herbicides even if the Gallaghers did not consent. It therefore granted the Cooperative's motion to exclude evidence of trespass, damages within the right-of-way, and the need for the Gallaghers' consent. This ruling made the Gallaghers' motion to exclude expert testimony on the Cooperative's right to apply herbicides or otherwise destroy the trees moot, since all the trees destroyed were within the right-of-way. The court also ruled that damages for annoyance and inconvenience were not available in the absence of a nuisance claim, which the Gallaghers were not asserting; and it ruled that the Gallaghers were not entitled to punitive damages for damages occurring outside the right-of-way if treble damages were available under Wis. Stat. § 182.017(5) (1999-2000). 4
P8. Subsequently the parties agreed that the court's rulings on the motions in limine were tantamount to dismissal of the Gallaghers' claims for damages within the right-of-way, and they therefore stipulated to the entry of an order dismissing those claims with prejudice. They also stipulated to dismissal of the Gallaghers' claims for damages outside the right-of-way without prejudice, agreeing that if an appellate court reversed the trial court's order on the claims for damages within the right-of-way and remanded, the Gallaghers could re-file their claims for damages outside the right-of-way; but if the appellate court affirmed the order regarding damages within the right-of-way, those claims outside the right-of-way would be dismissed with prejudice.
P9. The Gallaghers appealed the order dismissing their claims for damages within the right-of-way. We dismissed that appeal, concluding that Cascade Mountain, Inc. v. Capitol Indem. Corp., 212 Wis. 2d 265, 569 N.W.2d 45 (Ct. App. 1997), applied. We held in Cascade Mountain that a party could not, by stipulating to the entry of a conditional judgment, obtain a mandatory appeal of an interlocutory order. Id. at 269.
P10. Following the dismissal of that appeal, the Gallaghers moved the trial court to dismiss with prejudice the claims for damages outside the right-of-way. The court granted the motion and entered an order dismissing those claims with prejudice.
P11. On this appeal, the Gallaghers assert the trial court erred in concluding that the Cooperative had a right to destroy with herbicides the trees and other vegetation within its right-of-way without the Gallaghers'consent. They also contend they are entitled to damages for discomfort and annoyance on their trespass claim, and to either treble damages under Wis. Stat. § 182.017(5) or punitive damages for the destruction of the trees and plants within the right-of-way. Before addressing these issues, we address the Cooperative's argument that we must dismiss this appeal for the same reason we dismissed the prior appeal. We conclude that neither the dismissal of the prior appeal nor Cascade Mountain precludes the Gallaghers from pursuing this...
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Gallagher v. Grant-Lafayette Elec. Co-op.
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