Wisconsin Public Service Corp. v. Andrews

• Decision Date: 24 February 2009
• Docket Number: No. 2007AP2673.,2007AP2673.
• Citation: 766 N.W.2d 232,2009 WI App 30
• Parties: WISCONSIN PUBLIC SERVICE CORPORATION, Plaintiff-Respondent-Cross-Appellant, v. Patricia K. ANDREWS, Defendant-Appellant-Cross-Respondent.<SMALL><SUP>&#x2020;</SUP></SMALL>
• Court: Wisconsin Court of Appeals

766 N.W.2d 232

2009 WI App 30

WISCONSIN PUBLIC SERVICE CORPORATION, Plaintiff-Respondent-Cross-Appellant, v. Patricia K. ANDREWS, Defendant-Appellant-Cross-Respondent.^†

No. 2007AP2673.

Court of Appeals of Wisconsin.

Submitted on Briefs November 4, 2008.

Opinion Filed February 24, 2009.

On behalf of the defendant-appellant-cross-respondent, the cause was submitted on the briefs of Forrest O. Maki and Karry A. Johnson of Maki, Ledin, Bick & Olson, S.C. of Superior.

On behalf of the plaintiff-respondent-cross-appellant, the cause was submitted on the briefs of Trevor J. Will and Leon W. Todd III of Foley & Lardner LLP of Milwaukee.

Before HOOVER, P.J., PETERSON and BRUNNER, JJ.

¶ 1 BRUNNER, J

Patricia Andrews appeals a summary judgment dismissing her counterclaims against Wisconsin Public Service Corporation (WPSC) in a declaratory judgment action. Andrews contends genuine issues of material fact exist on her counterclaims. WPSC cross-appeals a portion of the same judgment dismissing its claim for a declaratory judgment. WPSC argues the circuit court erroneously concluded that WPSC did not have the right to replace an existing transmission line with a new transmission line under existing easements.

¶ 2 We affirm the portion of the summary judgment dismissing Andrews' counterclaims. However, we reverse the portion of the judgment dismissing WPSC's claim for a declaratory judgment. On remand, we direct the circuit court to enter a declaratory judgment in WPSC's favor.

BACKGROUND

¶ 3 In October 2001, WPSC obtained authority from the Wisconsin Public Service Commission to construct a high voltage, 345kV, transmission line from Arrowhead, Minnesota to Weston, Wisconsin. The Arrowhead-Weston transmission line's approved path traverses Andrews' property, where there is currently a 161kV transmission line.

¶ 4 The existing 161kV line sits on 105-foot-wide easements granted by Andrews' predecessors in title. The easements were granted in two 1972 deeds and are now owned by WPSC. Under the 1972 deeds, WPSC has the "perpetual right, privilege and easement to construct, maintain and operate an electric transmission line, or lines which may be constructed or reconstructed at any time hereafter with the necessary poles, cross-arms, guys, braces, wires and appurtenances."

¶ 5 In 2002, WPSC was preparing to construct the new transmission line and requested permission from Andrews to enter her property for surveying. Andrews refused to give permission and, through her attorney, disputed whether the current easements permitted construction of the new transmission line.

¶ 6 In April 2006, WPSC commenced this action seeking a declaratory judgment establishing its right to construct the new transmission line under the 1972 easements. WPSC moved for summary judgment, which the court denied. The court concluded WPSC's easement rights were limited by the easements' initial use for the 161kV transmission line. Therefore, the court concluded WPSC was required to obtain new easements complying with post-1972 statutory requirements applicable to high-voltage transmission line easements, specifically WIS. STAT. § 182.017(7)(a).¹

¶ 7 Andrews filed a litany of counterclaims, on which WPSC also moved for summary judgment. Generally, Andrews' counterclaims alleged WPSC acted tortiously by bringing the declaratory judgment action. She also alleged trespass and statutory and administrative code violations. The circuit court granted WPSC's motion for summary judgment, dismissing Andrews' counterclaims.

DISCUSSION

¶ 8 We review summary judgments de novo, applying the same methodology as the circuit court. Park Bancorporation, Inc. v. Sletteland, 182 Wis.2d 131, 140, 513 N.W.2d 609 (Ct.App.1994). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08.

I. WPSC'S CROSS-APPEAL

¶ 9 We first address the court's dismissal of WPSC's claim for a declaratory judgment which is the subject of WPSC's cross-appeal. WPSC contends the court erred when determining WPSC could not build the new transmission line under the 1972 easements, but was instead required to obtain new easements that complied with WIS. STAT. § 182.017(7)(a).

a. WPSC'S Easement Rights

¶ 10 A deed granting an easement defines the relative rights of the landowners. Eckendorf v. Austin, 2000 WI App 219, ¶ 7, 239 Wis.2d 69, 619 N.W.2d 129. If a deed's language is unambiguous, its meaning is a question of law that we review independently. See Edlin v. Soderstrom, 83 Wis.2d 58, 69, 264 N.W.2d 275 (1978). Whether a deed's language is ambiguous is also a question of law. Eckendorf, 239 Wis.2d 69, ¶ 7, 619 N.W.2d 129.

¶ 11 The deeds granting the easements conveyed a "perpetual right, privilege and easement to construct, maintain and operate an electric transmission line, or lines which may be constructed or reconstructed at any time hereafter with the necessary poles, cross-arms, guys, braces, wires and appurtenances." The width and location of the easements were also specified.

¶ 12 While the easement rights granted by the deeds are broad, they are not ambiguous. Because they are not ambiguous, there is no need to look beyond the deeds' language. See id. The deeds' language permits WPSC to construct or reconstruct transmission lines at any time. Because the Arrowhead-Weston line is a transmission line, its construction is plainly permitted under the deeds.

¶ 13 Absent ambiguity in the deeds, it was inappropriate for the court to look outside the deeds, including at how the easements are currently being used. See id. The court relied primarily on Lehner v. Kozlowski, 245 Wis. 262, 13 N.W.2d 910 (1944), from which it quoted the following:

The rule is well settled that where a grant of an easement is general as to the extent of the burden to be imposed on the servient tenement, an exercise of the right, with the acquiescence and consent of both parties, in a particular course or manner, fixes the right and limits it to the particular course or manner in which it has been enjoyed.

Id. at 266, 13 N.W.2d 910 (quoting Winslow v. Vallejo, 148 Cal. 723, 84 P. 191, 192 (1906)).

¶ 14 In Lehner, our supreme court addressed a written agreement creating an easement for a drainage ditch, but not specifying the easement's location. Id. at 263, 266-67, 13 N.W.2d 910. The court interpreted the written agreement as granting "the right to choose the location and type of ditch to be installed but that such election was binding on him." Id. at 266-67, 13 N.W.2d 910. Therefore, the Lehner court concluded the easement holder was not permitted to replace an existing ditch with a different type of ditch in another location. Id. at 264, 267, 13 N.W.2d 910. However, the Lehner court did not hold that an easement holder's bargained-for rights evaporate to the extent not initially used. Rather, the court's decision turned on its interpretation of the agreement. See id. at 266-67, 13 N.W.2d 910. Here, the deeds creating the easements do not contemplate the one-time construction of transmission lines. Also unlike in Lehner, the easements' locations and dimensions here are fixed by the deeds.

¶ 15 In addition to relying on Lehner, the circuit court's decision quoted Shellow v. Hagen, 9 Wis.2d 506, 513, 101 N.W.2d 694 (1960) ("The degree of definiteness of an easement is determined by the nature and extent of the right asserted"), and Niedfeldt v. Evans, 272 Wis. 362, 365, 75 N.W.2d 307 (1956) ("The extent of the easement is commensurate with and determined by the use."). These cases address prescriptive easements, which are inherently different from express easements in that prescriptive easements are necessarily defined by prior use. See Shellow, 9 Wis.2d at 508-10, 101 N.W.2d 694; Niedfeldt, 272 Wis. at 365, 75 N.W.2d 307. These cases have no application here.

b. Applicability of WIS. STAT. § 182.017(7)(a)

¶ 16 Having determined that WPSC was permitted to construct the new power lines under the 1972 easements, we next address the applicability of WIS. STAT. § 182.017(7)(a). Section 182.017(7) applies to right-of-way easements for high-voltage transmission lines, with § 182.017(7)(a) requiring:

The conveyance under ch. 706 and, if applicable, the petition under s. 32.06(7), shall describe the interest transferred by specifying, in addition to the length and width of the right-of-way, the number, type and maximum height of all structures to be erected thereon, the minimum height of the transmission lines above the landscape, and the number and maximum voltage of the lines to be constructed and operated thereon.

These requirements became effective on September 30, 1975. 1975 Wis. Laws, ch. 68, § 8. No one argues the statute applies retroactively to the 1972 conveyances.

¶ 17 The statute governs what must be specified in a conveyance of an easement. Because the easements here were conveyed prior to the enactment of the statute, the conveyances were not subject to the statute's requirements. The circuit court's conclusion that WPSC was required to obtain new easements complying with WIS. STAT. § 182.017(7)(a) was premised on its erroneous conclusion that WPSC's easement rights were limited by the easements' current use.

II. ANDREWS' APPEAL

¶ 18 We next address Andrews' appeal contesting the summary judgment dismissing her counterclaims. These counterclaims included: abuse of process; malicious prosecution; trespass; waiver and estoppel; violations of WIS. STAT. ch. 196; violations of WIS. ADMIN. CODE § PSC 113.0508 (Apr.2007); and entitlement to attorney fees and punitive damages.

a. Abuse of Process

¶ 19 Andrews claims WPSC's institution of the declaratory judgment action against her constituted an abuse of process. Abuse of process is a tort that occurs when someone "uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not...