Meyer v. Xcel Energy Servs.

• Decision Date: 27 April 2023
• Docket Number: 2022AP900
• Parties: Lloyd C. Meyer, Plaintiff-Appellant, v. Xcel Energy Services Inc., Neillsville Improvement Corporation and Northern States Power Company, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

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Lloyd C. Meyer, Plaintiff-Appellant, v. Xcel Energy Services Inc., Neillsville Improvement Corporation and Northern States Power Company, Defendants-Respondents.

No. 2022AP900

Court of Appeals of Wisconsin, District IV

April 27, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from an order of the circuit court for Clark County No 2019CV110 RICHARD A. RADCLIFFE, Judge. Affirmed in part reversed in part and remanded.

Before Kloppenburg, Fitzpatrick, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM.

¶1 Lloyd C. Meyer appeals an order of the Clark County Circuit Court granting summary judgment to Northern States Power Company ("NSP") on Meyer's adverse possession and prescriptive easement claims. Meyer argues that the circuit court erred in granting summary judgment as to both claims. For the following reasons, we affirm the circuit court's order with respect to Meyer's adverse possession claim, but we reverse the circuit court's order with respect to Meyer's prescriptive easement claim.

BACKGROUND

¶2 There is no dispute as to the following material facts.

¶3 NSP is a public utility that transmits and distributes electricity in Wisconsin. NSP owns a 100-foot-wide strip of land (the "NSP Property") that abuts property owned by Meyer. The NSP Property is a section of a longer strip of land owned by NSP that spans over twelve miles between Neillsville, Wisconsin and Chili, Wisconsin. In 1997, NSP constructed a transmission line from Neillsville to Chili and a portion of that transmission line was built on what is now the NSP Property. Since that time, NSP has maintained on or over, the NSP Property eleven power poles, a transmission line, and accompanying transmission infrastructure that hangs from those poles. NSP has not used the NSP Property for any other purpose since it constructed the transmission line.

¶4 Meyer owns the land on both sides of the NSP Property. No later than 1987, Meyer built a pond on his property that is also partially located on the NSP Property. Meyer also performed the following activities on the NSP Property installed a buried electrical line for a pond aerator; constructed a steel windmill; farmed and harvested crops; lowered the grade of the NSP Property; developed and maintained three roads across the NSP Property; pastured livestock; mowed and cut brush; and stored on the NSP Property firewood, logs, steel, lumber, and farm machinery.

¶5 In 2019, Meyer filed in the circuit court a complaint against NSP alleging that he adversely possessed the entire NSP Property or, in the alternative, that he is entitled to a prescriptive easement to continue using the NSP Property.^[1] NSP moved for summary judgment on Meyer's claims, arguing that: (1) Meyer's adverse possession claim fails because his occupation of the NSP Property was not "exclusive of any other right"; and (2) Meyer's prescriptive easement claim fails because his use of the NSP Property was not "hostile and inconsistent" with NSP's use of the NSP Property. The circuit court granted NSP's motion.^[2] Meyer appeals the court's order.

¶6 Additional material facts are mentioned in the following discussion.

DISCUSSION

¶7 On appeal, Meyer argues that the circuit court erroneously granted summary judgment on his adverse possession and prescriptive easement claims.

We begin by setting forth the governing principles and our standard of review regarding motions for summary judgment.

I. Governing Principles and Standard of Review for Summary Judgment.

¶8 We review a circuit court's decision granting or denying summary judgment independently, but we apply the same methodology as the circuit court. Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶14, 281 Wis.2d 448, 699 N.W.2d 54. On summary judgment, the moving party is entitled to judgment as a matter of law "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis.Stat. § 802.08(2); Bank of N.Y. Mellon v. Klomsten, 2018 WI.App. 25, ¶31, 381 Wis.2d 218, 911 N.W.2d 364.

¶9 In reviewing this motion for summary judgment, we apply the following methodology.^[3] We consider the moving party's affidavits or other proof to determine whether the moving party has made a prima facie case for summary judgment under Wis.Stat. § 802.08(2). L.L.N. v. Clauder, 209 Wis.2d 674, ¶14, 563 N.W.2d 434 (1997). "If the defendant is the moving party, the defendant must establish a defense that defeats the plaintiff's cause of action." Id., ¶14 n.6. If the moving party has made a prima facie case for summary judgment, "the opposing party must show, by affidavit or other proof, the existence of disputed material facts or undisputed material facts from which reasonable alternative inferences may be drawn that are sufficient to entitle the opposing party to a trial." Id., ¶14.

¶10 When determining whether there is a "genuine issue of material fact," the affidavits and other proof submitted by the parties "are viewed in a light most favorable to the opposing party." Id., ¶15. Additionally, in deciding whether there are factual disputes, "the circuit court and the reviewing court consider whether more than one reasonable inference may be drawn from undisputed facts; if so, the competing reasonable inferences may constitute genuine issues of material fact." H & R Block E. Enters., Inc. v. Swenson, 2008 WI.App. 3, ¶11, 307 Wis.2d 390, 745 N.W.2d 421 (2007).

¶11 We next consider in turn the parties' arguments regarding adverse possession and a prescriptive easement concerning the NSP Property.

II. Adverse Possession.

A. Governing Principles of Adverse Possession.

¶12 "Adverse possession is a legal action that enables a party to obtain valid title of another's property by operation of law." Wilcox v. Estate of Hines, 2014 WI 60, ¶19, 355 Wis.2d 1, 849 N.W.2d 280. Wisconsin Stat. § 893.25 governs adverse possession claims and provides that a person may commence an action to establish title if that person "is in uninterrupted adverse possession of real estate for 20 years." Sec. 893.25(1). Under this statute, property is adversely possessed only if the possessor is in "actual continued occupation under claim of title, exclusive of any other right," and the property is "protected by a substantial enclosure" or "usually cultivated and improved." Sec. 893.25(2).^[4] This statute "codifies the common law elements of adverse possession, which require physical possession that is 'hostile, open and notorious, exclusive and continuous.'" Wilcox, 355 Wis.2d 1, ¶20 (citation omitted).

¶13 As we discuss shortly, the exclusivity element is dispositive and we now consider that factor. To establish that a person occupied property "exclusive of any other right" under Wis.Stat. § 893.25(2)(a), the person must "show an exclusive dominion over the land and an appropriation of it to [the person's] own use and benefit." Kruckenberg v. Krukar, 2017 WI.App. 70, ¶8, 378 Wis.2d 314, 903 N.W.2d 164 (citing 3 Am. Jur. 2d Adverse Possession § 61 (2011)). For this reason, the person's possession of the property must be "exclusive of the true owner." Illinois Steel Co. v. Tamms, 154 Wis. 340, 344, 141 N.W. 1011 (1913); see also 3 Am. Jur. 2d Adverse Possession § 63 ("In order for possession to be exclusive for purposes of adverse possession, the claimant must shut out or wholly exclude the rightful owner from possession of the property during the required statutory period." (internal footnote omitted)); see, e.g., Cuskey v. McShane, 2 Wis.2d 607, 609-10, 87 N.W.2d 497 (1958) (holding that use was not exclusive of the true owners because the true owners cut grass, trimmed trees, parked cars and equipment, and erected an advertising banner on the property).

B. The Circuit Court Property Granted Summary Judgment on Meyer's Adverse Possession Claim.

¶14 To repeat, we first determine whether NSP as the moving party has made a prima facie case for summary judgment. See L.L.N., 209 Wis.2d 674, ¶14. NSP argues that it is entitled to judgment because Meyer did not exclusively occupy the NSP Property as required under Wis.Stat. § 893.25(2)(a). In support, NSP points to evidence in the record demonstrating that NSP constructed a transmission line on the NSP Property in 1997 and has continuously used the NSP Property for the purposes of operating and maintaining that transmission line. Meyer does not dispute that NSP maintained power poles, power lines, and other transmission infrastructure on the NSP Property during the period of alleged adverse possession. In addition, Meyer admitted in his complaint that "authorized personnel of … NSP and its contractors" accessed the NSP Property "for purposes of powerline maintenance." These undisputed facts establish that Meyer did not have "exclusive dominion" over the NSP Property because he did not exclude the true owner-NSP-from exercising its right to occupy the NSP Property through its use of operating and maintaining transmission lines. See Kruckenberg, 378 Wis.2d 314, ¶8.

Therefore, NSP has satisfied its burden of making a prima facie case for summary judgment. See L.L.N., 209 Wis.2d 674, ¶15.^[5]

¶15 The next step in the summary judgment analysis is to determine whether Meyer has shown the existence of disputed material facts, or undisputed material facts from which reasonable alternative inferences may be drawn, that are sufficient to entitle him to a trial. See id. ¶14. Meyer argues that summary judgment is not...