Harmony Antique Cars, Inc. v. Midwest Tower Partners, No. 2005AP1033 (WI 3/16/2006)
| Decision Date | 16 March 2006 |
| Docket Number | No. 2005AP1033.,2005AP1033. |
| Parties | Harmony Antique Cars, Inc., Plaintiff-Appellant, v. Midwest Tower Partners LLC, Defendant-Respondent. |
| Court | United States State Supreme Court of Wisconsin |
APPEAL from a judgment and an order of the circuit court for Rock County: JOHN W. ROETHE, Judge. Reversed and cause remanded with directions.
Before Dykman, Vergeront and Higginbotham, JJ.
¶1
This is an appeal from a judgment dismissing Harmony Antique Cars, Inc.'s complaint and from an order declaring the scope of an easement. The issue is whether an easement held by Midwest Tower Partners over land owned by Harmony authorized Midwest to construct a three and one-half feet by three and one-half feet by three feet reinforced concrete anchor block and a thirty by thirty-four foot gravel berm on Harmony's land. We conclude that it does not and therefore reverse.
¶2 This case has a significant history. The record is long and complex. In 1991, Albert and Marcia Phillips deeded the west half of their commercial lot to Isabel and Donald Donahue. A radio communications tower was located on the lot, which required three guy wires and anchors for its support. One of the anchors was located on the west half of the lot, so the deed from the Phillips to the Donahues contained the following language: "Grantor reserves a right of way for a guy wire and associated hardware in its present location until such time as grantor, their heirs or assigns, remove the radio communications tower located on grantor's adjoining property."
¶3 In 1998, the tower was owned by Tower Light Communications, Inc. Tower Light installed a new tower capable of supporting twelve antennas and removed the original tower. It also installed a new dead man, the buried concrete anchor to which an anchor rod is attached, a new anchor head and new guy wires. Harmony sued in trespass, alleging that the new tower breached the provision in the deed granting an easement only until the then-existing tower was removed. The trial court, Judge Michael J. Byron presiding, concluded that the deed's provisions allowed a replacement tower to be built. But it also concluded that moving the dead man, anchor rod and anchor head violated the "present location" provision of the deed. The trial court concluded that, by doing so, Tower Light trespassed on Harmony's land. The court awarded damages. Harmony appealed arguing that, because the previous tower had been removed, the easement or right of way in the deed provision no longer applied. Tower Light did not cross-appeal the trial court's conclusion that Tower Light had trespassed on Harmony's land. We affirmed. Harmony Antique Cars, Inc. v. LSH, Inc., No. 1999AP2082, unpublished slip op. (WI App July 27, 2000).
¶4 In 2002, Midwest Tower Partners LLC was now the owner of the tower. Midwest hired PiRod, Inc. to conduct a study to determine whether additional antennas could be placed on the tower. PiRod produced exhibit seven, which shows a requested antenna loading of twenty-seven antennas and six amplifiers. To resist the weight and wind load of the additional equipment, PiRod recommended placing one foot six inches of compacted fill around the dead man for a distance of fifteen feet six inches in the front and five feet five inches beyond the back and sides and a concrete block around each anchor rod. Midwest installed the concrete anchor block and a gravel berm. In April 2004, PiRod conducted an additional study to determine whether additional antennas could be added to the tower.
¶5 In July 2004, Harmony again sued, this time naming Midwest, as the assignee of Tower Light, as a defendant.1 Harmony asserted that Midwest had exceeded the scope of its easement and had trespassed on its land. Harmony sought actual and punitive damages and equitable relief. The trial court, Judge John W. Roethe presiding, dismissed Harmony's complaint based on its reading of our 2000 decision affirming Judge Byron's decision. It also issued an order defining the dimensions of the easement contained in the 1991 deed. The court concluded that Gallagher v. Grant-Lafayette Elec. Co-op, 2001 WI App 276, ¶17 249 Wis. 2d 115, 637 N.W.2d 80, provided the analysis it was to use here. It quoted the following passage from Gallagher:
We agree with the Cooperative that the only reasonable interpretation of the membership agreement is that it grants the Cooperative a right-of-way easement and that at least one purpose of the easement is for the placement and maintenance of power lines. Since the membership agreement does not provide any detail on the scope of the easement, we apply the principle that every easement carries with it by implication the right to do what is reasonably necessary for the full enjoyment of the easement in light of the purpose for which it was granted. Atkinson, 211 Wis. 2d at 640. Applying that principle, we conclude that the Cooperative's easement includes the right to take those steps that are reasonably necessary to maintain its power line on the Gallaghers' property.
Id., ¶17 (footnote omitted).
¶6 Gallagher involved whether, under an easement which read "a reasonable right of way easement," an electric power company could destroy trees and other vegetation with herbicides. We interpreted the easement in the manner the trial court quoted. We concluded that whether the cooperative trespassed on the Gallagher's property under the terms of the easement depended on whether it was reasonably necessary for the power company to clear all the trees and other vegetation from the easement. We did not say that, regardless of the terms of an easement, a trial court's only inquiry would be whether the use of the easement was reasonable. The law is otherwise. In Hunter v. Keys, 229 Wis. 2d 710, 714, 600 N.W.2d 269 (Ct. App. 1999), we explained:
The meaning of an easement created by deed involves construction of the deed's language. The scope of the easement is reflected in the instrument creating the easement and we look to that instrument in construing the rights of the relative landowners. The use of the easement must be in accordance with and confined to the terms and purposes of the grant. (Citation omitted.)
¶7 We review the language of an unambiguous deed de novo. Rikkers v. Ryan, 76 Wis. 2d 185, 188, 251 N.W.2d 25 (1977). We conclude that the words "[g]rantor reserves a right-of-way for a guy wire and associated hardware in its present location" are unambiguous as to the location of the dead man, anchor rod and anchor head. The "present location" of the dead man, anchor rod and anchor head was known to both parties to the deed. Exhibit seventeen shows the anchor rod and anchor head of the original anchor with the new anchor head and berm in the background. The two are certainly not in the same location. The new installation with its berm covers dramatically more space than the original installation. We reach the same conclusion as did Judge Byron, that the change in the dead man, anchor rod and anchor head location by ten to thirteen feet constituted a trespass because it exceeded the privilege granted by the deed.
¶8 Midwest argues, however, that it interprets Judge Byron's decision as permitting its later expansion of its anchor and that this decision must be followed under principles of claim preclusion and issue preclusion. While we disagree that Judge Byron held that Midwest could do whatever was reasonably necessary to enhance the tower's antenna carrying capacity, we will consider whether principles of preclusion apply.
¶9 Under claim preclusion, a final judgment is conclusive in all subsequent actions between the same parties or their privies as to all matters which were litigated or which might have been litigated in the former proceedings. Menard, Inc. v. Liteway Lighting Prods., 2005 WI 98, ¶26, 282 Wis. 2d 582, 698 N.W.2d 738. We review the applicability of claim preclusion de novo. Kruckenberg v. Harvey, 2005 WI 43, ¶17, 279 Wis. 2d 520, 694 N.W.2d 879. The elements of claim preclusion are: (1) identity between the parties or their privies in the prior or present suits; (2) prior litigation resulted in a final judgment on the merits by a court with jurisdiction; and (3) identity of the causes of action in the two suits. Id., ¶21. There is no "fundamental fairness" element in claim preclusion analysis. Id., ¶62. Wisconsin has adopted the "transactional approach" to determine the third element of claim preclusion:
The goal in the transactional approach is to see a claim in factual terms and to make a claim coterminous with the transaction, regardless of the claimant's substantive theories or forms of relief, regardless of the primary rights invaded, and regardless of the evidence needed to support the theories or legal rights. Under the transactional approach, the legal theories, remedies sought, and evidence used may be different between the first and second actions. The concept of a transaction connotes a common nucleus of operative facts.
The transactional approach to claim preclusion reflects the expectation that the parties who are given the capacity to present their entire controversies shall in fact do so. One text states that the pragmatic approach that seems most consistent with modern procedural philosophy looks to see if the claim asserted in the second action should have been presented for decision in the earlier action, taking into account practical considerations relating mainly to trial convenience and fairness.
Id., ¶¶26-27 (citations and footnotes omitted).
¶10 Applying the transactional approach, we cannot conclude that Harmony should have brought the claim asserted here in its previous suit. It was not possible for Harmony to make the claim that Midwest, or its privy, Tower Light, placed a reinforced concrete block and a berm on its property in its first suit. When it sued the first time, those things had not occurred. Claim preclusion does not bar this suit.
¶11...
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