                                                                  2017 WI 35

                  SUPREME COURT              OF   WISCONSIN
CASE NO.:               2014AP2278 and 2014AP2279
COMPLETE TITLE:         In re: Acquisition of Property of Ricardo M.
                        Garza and Julie L. Garza:

                        Ricardo M. Garza and Julie L. Garza,
                             Plaintiffs-Appellants,
                        v.

                        American Transmission Company LLC and ATC
                        Management, Inc.,
                             Defendants-Respondents-Petitioners.
                        __________________________________________________
                        American Transmission Company LLC and ATC
                        Management, Inc.,
                             Plaintiffs-Respondents-Petitioners,

                        v.

                        Ricardo Garza and Julie Garza,
                             Defendants-Appellants.

                             REVIEW OF A DECISION OF THE COURT OF APPEALS
                              Reported at: 366 Wis. 2d 330, 873 N.W.2d 99

OPINION FILED:          April 13, 2017
SUBMITTED ON
BRIEFS:
ORAL ARGUMENT:          November 1, 2016

SOURCE OF APPEAL:
  COURT:                Circuit
  COUNTY:               Waupaca
  JUDGE:                Mark J. McGinnis

JUSTICES:
  CONCURRED:
  DISSENTED:
  NOT
  PARTICIPATING:

ATTORNEYS:
       For        the    defendants-respondents-petitioners,    there   were
briefs by Bryan J. Cahill, Katherine Stadler and Godfrey & Kahn,
S. C., Madison, and oral argument by Bryan J. Cahill.
    For the plaintiff-appellant, there was a brief by Frank J.
Jablonski    and   Progressive   Law       Group,    LLC,    Madison,   and    oral
argument by Frank Jablonski.


    An amicus curiae brief was filed by                      Cori Moore Lamont,
Madison for The Wisconsin Realtors® Association.


    An amicus curiae brief was filed by Bradley D. Jackson,
James   E.   Goldschmidt   and   Quarles      &     Brady,    LLP,   Madison    for
Wisconsin Utilities Association.




                                       2
                                                                           2017 WI 35
                                                                   NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
Nos.     2014AP2278 & 2014AP2279
(L.C. Nos.   2011CV467 & 2011CV478)

STATE OF WISCONSIN                            :               IN SUPREME COURT

In re: Acquisition of Property of Ricardo M.
Garza and Julie L. Garza:

Ricardo M. Garza and Julie L. Garza,
          Plaintiffs-Appellants,
                                                                        FILED
       v.                                                          Apr 13, 2017

American Transmission Company LLC and ATC                             Diane M. Fremgen
                                                                   Clerk of Supreme Court
Management, Inc.,
          Defendants-Respondents-Petitioners.



American Transmission Company LLC and ATC
Management, Inc.,
          Plaintiffs-Respondents-Petitioners,

       v.

Ricardo Garza and Julie Garza,
          Defendants-Appellants.




       REVIEW of a decision of the Court of Appeals.                  Reversed.



       ¶1    MICHAEL   J.   GABLEMAN,   J.    This       is    a     review      of    an

unpublished     per    curiam   decision     of    the     court         of    appeals
                                                                Nos.    2014AP2278 & 2014AP2279



reversing the Waupaca County circuit court's1 grant of summary

judgment in favor of American Transmission Company LLC and ATC

Management, Inc. (collectively referred to as "ATC").                                 Garza v.

Am. Transmission Co., Nos. 2014AP2278 & 2014AP2279, unpublished

slip op. (Wis. Ct. App. Nov. 19, 2015) (per curiam).

     ¶2        This case requires us to decide whether ATC has the

right,     either         under    a     1969    deed     of      easement        (hereinafter

referred       to     as     the       "1969    easement")         or     by      means   of    a

prescriptive easement under Wis. Stat. § 893.28(2) (2013-14),2 to

enter    the    property          of   Ricardo       M.   and     Julie      L.   Garza   ("the

Garzas")       and    trim    some,       and    remove     other,        trees      which     are

threatening          or    endangering         the    operation         of     one   of   ATC's

electric transmission lines.                    We hold that, under the 1969 deed

of easement, ATC has the right to enter the Garzas' property to

both trim and remove the trees that threaten or endanger the

operation       of    the    relevant          transmission        line.3         This    is    so

because, contrary to what the Garzas argue, the 1969 easement is

still in effect, thereby allowing ATC to enter their property.
The 1969 easement's language "comprising wood pole structures"

is language of description, not circumscription, and as such, it

     1
         The Honorable Mark J. McGinnis presiding.
     2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
     3
       Because we resolve the case under the 1969 deed of
easement, we do not address whether ATC has prescriptive rights
under Wis. Stat. § 893.28(2) to trim and remove trees on the
Garzas' property.


                                                 2
                                             Nos.    2014AP2278 & 2014AP2279



does not limit the transmission line to being constructed on

wood poles, thereby terminating the 1969 easement.             Rather, the

1969 easement grants to the dominant estate holder (here ATC)

the right to make the change from wood poles to steel poles.

Therefore, the decision of the court of appeals is reversed.

         I.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY

    ¶3   Jerome    and   Betty   Hertig   ("the    Hertigs")   granted   an

easement to the Wisconsin Public Service Corporation ("WPSC") by

deed dated June 28, 1969.        The 1969 easement was recorded on

July 8, 1969.

    ¶4   The     1969    easement   is    titled    "Transmission      Line

Easement."    It grants WPSC

    the perpetual right, privilege and easement to erect,
    maintain and operate an electric transmission line,
    comprising wood pole structures[4] conductors and other
    wires, counterpoises, guy wires, braces and other
    usual appendages and appurtenances of such kind as
    said Grantee, its successors and assigns, may from
    time to time determine, for transmitting electric
    current over and across [the Hertigs' property.]
The 1969 easement continues with a property description of the

Hertigs' property and a description of the easement route.

    ¶5   The 1969 easement also provides:

    Together with the right from time to time to enter
    upon said premises for the purpose of erecting said
    line, and changing, repairing, patrol[l]ing, replacing
    and removing the same, and the right from time to time

    4
       The 1969 easement was a form easement used by WPSC at the
time the Hertigs and WPSC entered the 1969 easement.         The
underlined language represents a blank space on the easement
form that the parties completed.


                                    3
                                                        Nos.   2014AP2278 & 2014AP2279


      to clear all brush and trees within 40 feet of each
      side of the center line of such transmission line and
      the right from time to time to cut down, trim or
      remove such trees on said premises beyond such 40 feet
      as in the judgment of Grantee, its successors and
      assigns, may interfere with or endanger said line, and
      to do any and all other acts necessary in the proper
      erection, maintenance, safeguarding, and operation of
      said line.
      ¶6     Pursuant to the 1969 easement, WPSC constructed a 69

kV5   transmission   line   on   wood       pole   structures        on   the   route

described therein.6      Following the 1969 easement, in 1977, the
Hertigs     subdivided   their   property          to     create     Woodland    Park

Estates subdivision.

      ¶7     In 1995, to meet the community's increased electrical

needs, WPSC upgraded the transmission line from a 69 kV line to

a double-circuit 69 kV/138 kV7 line to allow the transmission

line to carry more electricity.               WPSC also replaced the wood

poles supporting the transmission line with steel poles.

      ¶8     WPSC assigned the easement to ATC in 2001, and the

assignment was recorded the same day.

      ¶9     On September 30, 2004, the Garzas purchased Lot 1 of

Woodland Park Estates.      There is no dispute that, at the time of
purchase, the Garzas were aware of the transmission line.                        They


      5
       kV stands for kilovolts and serves as a way to measure
electricity.
      6
       A visual depiction of the transmission line's route is
included in the Appendix.
      7
          This double-circuit line is composed of two transmission
lines.


                                        4
                                                             Nos.     2014AP2278 & 2014AP2279



saw    the   transmission       line          and    received     a    copy     of    the       1969

easement with the paperwork when they purchased their home.                                       In

addition, the 1969 easement was noted on their title insurance

policy.

       ¶10    Because    Lot        1     is    in     the   southeastern            corner      of

Woodland     Park   Estates,            the    transmission       line     is    not       on    the

Garzas'      property.         However,          the    Garzas'       property        is    still

impacted by the 1969 easement (1) because it is located within

the 80-foot strip of land wherein WPSC reserved the right to

clear all trees and brush and (2) because WPSC reserved the

right to trim and remove trees that "interfere with or endanger"

the transmission line even if the trees are located outside the

80-foot strip of land.

       ¶11    In late 2010, ATC contacted the Garzas to notify them

that    it    needed     to    enter           the    Garzas'     property       to     perform

maintenance for the operation of the transmission line, which in

this   case    required       trimming          and    removing       trees     both       on    and

bordering the Garzas' property.                        The trimming and removal was
necessary      because        the       trees        threatened       or   endangered           the

operation of the transmission line.                          As ATC explained in its

brief, trimming and removing the trees was necessary "to ensure




                                                 5
                                                         Nos.    2014AP2278 & 2014AP2279



the safe and reliable operation of the transmission line."8                           It

would also ensure the safety of anyone who may need to perform

work on a transmission line.

       ¶12       While ATC was able to perform some of the necessary

work in August 2011, the Garzas prevented ATC from completing

its maintenance project, and this suit followed.

       ¶13       The   Garzas    filed   an    inverse   condemnation       action    on

September 6, 2011, in the Waupaca County circuit court (L.C. No.

2011CV467), and on September 8, 2011, ATC filed a declaratory

judgment action (L.C. No. 2011CV478) in which it sought an order

from the court declaring that it had a right, under the 1969

easement and/or pursuant to the rights of prescriptive easement

under Wis. Stat. § 893.28(2), to enter the Garzas' property and

trim       and    remove   the     trees      threatening       or   endangering     the

operation of the transmission line.

       ¶14       On October 3, 2011, the Garzas filed counterclaims in

which they sought (1) a declaratory judgment that ATC did not

have the right to enter their property to trim and remove trees


       8
       To make its point that maintaining trees and other
vegetation surrounding a transmission line is important, ATC
points to an event in 2003 in Ohio where a tree damaged a
transmission line and caused roughly 50 million people to lose
power for two days.     See Brian S. Tomasovic, A High-Voltage
Conflict on Blackacre:   Reorienting Utility Easement Rights for
Electric Reliability, 36 Colum. J. Envtl. L. 1, 6-7 (2011). In
fact, "[t]he courts have recognized that properly and safely
maintaining power lines involves keeping the wires clear of
interference, in the context of an easement acquired by
condemnation."   Gallagher v. Grant-Lafayette Elec. Co-op, 2001
WI App 276, ¶18, 249 Wis. 2d 115, 637 N.W.2d 80.


                                              6
                                                          Nos.    2014AP2278 & 2014AP2279



and   (2)   alleged      trespass,      intentional            property     damage,    and

inverse condemnation.

      ¶15    After    the     cases    were       consolidated,         ATC    moved   for

summary     judgment,     and    the    Garzas'          moved    for   a     declaratory

judgment.       The circuit court, in addressing both motions, found,

inter alia, that, under the 1969 easement, "ATC is allowed to

remove    the    trees   at   issue     and       they    do    not   trespass    on   the

Garzas' property in doing so."                   The circuit court stated, "The

unambiguous        language     of    the    easement          allows   for     changing,

repairing,      and/or    replacing         the    transmission         line    over   the

course of time in perpetuity.                     The language of the easement

demonstrates that the parties obviously wanted the easement to

survive changes in both power needs and technology."                           Therefore,

because Wisconsin law allows the dominant estate holder to do

what is reasonably necessary to continue enjoying the right to

use9 granted under a deed of easement, the circuit court found

that the 1969 easement was not invalidated when the wood poles

were replaced with steel poles.                     The circuit court found it
important that WPSC "stayed within the general bounds of the

easement and only furthered the use of the enjoyment when the

power demands of the area necessitated changing the facility."

Consequently, the circuit court granted ATC's motion for summary

judgment     and     denied     the    Garzas'       motion       for   a     declaratory

judgment.
      9
       The right to use is a term of art that includes, among
other things, the right to reasonable implementation of advances
in technology. This term will be described in greater detail.


                                             7
                                                             Nos.    2014AP2278 & 2014AP2279



      ¶16    The circuit court also found that summary judgment was

improper     for     determining         whether       ATC     had     any     prescriptive

easement rights under Wis. Stat. § 893.28(2) because "there are

questions of fact as to the scope of any prescriptive easement"

that precluded summary judgment.                   The Garzas appealed.

      ¶17    The    court        of    appeals       reversed       the    circuit     court.

Garza,   unpublished            slip    op.,    ¶1.      It     interpreted          the   1969

easement as limiting the transmission line to being constructed

on a wood pole structure.               Id., ¶15.       Thus, the court of appeals

"reasoned," the transmission line upon which the 1969 easement

was founded no longer exists and therefore ATC has no rights to

enter the Garzas' property.                    Id., ¶16.        The court of appeals

also stated that ATC failed to show that it has prescriptive

easement     rights        to    trim    and       remove     trees       on   the    Garzas'

property.          Id.,    ¶22.         Consequently,         the     court     of    appeals

reversed the circuit court's grant of summary judgment in favor

of ATC and remanded the case for further proceedings.                            Id., ¶23.

      ¶18    ATC petitioned this court for review, which this court
granted on April 6, 2016.                 We now address whether ATC has the

right to trim and remove the trees threatening or endangering

the operation of the transmission line under the 1969 easement.

                                II.    STANDARD OF REVIEW

      ¶19    This case requires us to review a decision of summary

judgment and requires us to review an interpretation of a deed

of easement.        This court reviews a decision of summary judgment

de novo.     Borek Cranberry Marsh, Inc. v. Jackson County, 2010 WI
95,   ¶11,    328         Wis. 2d 613,         785    N.W.2d 615.              "The    proper
                                               8
                                                          Nos.    2014AP2278 & 2014AP2279



construction of an easement is a question of law that we review

de novo."    Id., ¶12.

                                 III.    DISCUSSION

                            A.    Summary Judgment

      ¶20   Summary judgment must be granted "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).

      ¶21   In   making    this    determination,              this    court   applies   a

two-step test.        Green Springs Farms v. Kersten, 136 Wis. 2d 304,

314-15, 401 N.W.2d 816 (1987).                   Under the first step, this court

asks if the plaintiff stated a claim for relief.                            Id. at 315.

Under the second step, this court applies the summary judgment

statute and asks if any factual issues exist that preclude a

grant of summary judgment.          Id.

      ¶22   Here, we must interpret the 1969 easement to determine
whether ATC's motion for summary judgment should be granted.

                 B.   Relevant Principles of Easement Law

      ¶23   An   easement    grants          a    right   to     use    another's   land.

Konneker    v.   Romano,    2010        WI       65,   ¶25,    326     Wis. 2d 268,   785

N.W.2d 432 (quoting Hunter v. McDonald, 78 Wis. 2d 338, 343, 254

N.W.2d 282 (1977)).        It also creates two estates:                    the dominant

estate enjoys the ability to use the land in the way described

in the easement, while the servient estate permits that use.
Id.   The dominant estate holder's "use of the easement must be
                                             9
                                                          Nos.      2014AP2278 & 2014AP2279



in accordance with and confined to the terms and purposes of the

grant."      Id.      (quoting     Stoesser        v.    Shore      Drive    P'ship,      172

Wis. 2d 660,       668,    494    N.W.2d 204        (1993)).          Any    use    not    in

accordance    with        the    specific     right      to    use     granted      in    the

easement is outside the easement's scope and thus prohibited.

See Grygiel v. Monches Fish & Game Club, Inc., 2010 WI 93, ¶34,

328 Wis. 2d 436, 787 N.W.2d 6.

     ¶24   For a written easement, "[t]he primary source of the

parties' intent is what is written within the four corners of

the deed."       Konneker, 326 Wis. 2d 268, ¶26.                      Thus, we look to

the deed of easement10——here the 1969 easement——to determine what

right to use the dominant estate holder has.

     ¶25   If the language contained in the deed of easement is

unambiguous,       we    look    no    further     than       the    deed    of    easement

itself.    Id.        However, if the language is ambiguous, we resort

to   extrinsic        evidence        to   help    us     determine         the    parties'

intentions.        Id.      In    this     case,    we    conclude       that      the   1969

easement is unambiguous, and we need look no further than the
language contained in the 1969 easement.

                 C.     Interpretation of the 1969 Easement

     ¶26   The Garzas argue that ATC does not have the right to

enter their property to trim or remove the trees threatening or

endangering the operation of the transmission line because the

change from wood poles to steel poles invalidated the easement.

     10
       A deed of easement is a document that contains the terms
of a written easement.


                                            10
                                                       Nos.    2014AP2278 & 2014AP2279



They base their argument on language within the 1969 easement

referring     to   "wood    pole       structures."      The     Garzas     claim     the

entire 1969 easement is premised on the right to construct a

transmission       line    on     wood    poles.       Accordingly,         without    a

transmission line constructed on wood poles, the 1969 easement

and the rights granted in connection with that transmission line

cease to exist.           Thus, the Garzas argue, the 1969 easement is

invalid and ATC no longer has the right to enter the Garzas'

property.

      ¶27     ATC, on the other hand, argues that to interpret the

language "comprising wood pole structures" so as to proscribe

other materials from being used in the structure is to read that

phrase    out   of   context       and    preclude     evaluation      of    the    1969

easement as a whole.            ATC further argues that replacing the wood

poles    with   steel     poles    is    permitted     under     the   implied      term

contained in every easement that the dominant estate holder may

do what is reasonably necessary to continue enjoying the right

to use granted under a deed of easement.                      Thus, ATC argues the
change from wood poles to steel poles did not invalidate the

1969 easement and, with the 1969 easement still in place, ATC

has the right to enter the Garzas' property to trim and remove

the   trees     threatening       or     endangering    the     operation      of     the

transmission line.

      ¶28     We agree with ATC.

1.    An Easement Allows for Advances in Technology and Reasonable

 Implementation of Such Advances Does Nothing to Extinguish the
                            Rights Granted Therein
                                           11
                                                   Nos.     2014AP2278 & 2014AP2279



      ¶29   We   have    long     recognized     that,      implied       in   every

easement, unless otherwise stated, is the right of the dominant

estate to do what is reasonably necessary to enjoy the easement.

Scheeler v. Dewerd, 256 Wis. 428, 41 N.W.2d 635 (1950) (allowing

the   parties    to   upgrade    well    facilities    from    a   hand    pump   to

modern plumbing equipment); see also McDonnell v. Sheets, 15

N.W.2d 252, 255 (Iowa 1944) (allowing a dominant estate holder

to use an easement for ingress and egress as a driveway for

automobiles when the easement stated "team and wagon").                           The

Restatement (Third) of Property describes the "right to use" as

follows:

           Except as limited by the terms of the servitude
      determined under § 4.1, the holder of an easement or
      profit as defined in § 1.2 is entitled to use the
      servient estate in a manner that is reasonably
      necessary   for  the   convenient   enjoyment of  the
      servitude.   The manner, frequency, and intensity of
      the use may change over time to take advantage of
      developments in technology and to accommodate normal
      development of the dominant estate or enterprise
      benefited by the servitude. Unless authorized by the
      terms of the servitude, the holder is not entitled to
      cause unreasonable damage to the servient estate or
      interfere unreasonably with its enjoyment.
Restatement (Third) of Property:               Servitudes § 4.10 (Am. Law

Inst. 2000) (emphasis added).

      ¶30   We conclude that the change from wood to steel poles

was   a   reasonable    change    made    in   order   to   take   advantage      of

developments in technology.             The authorization from the Public

Service Commission of Wisconsin ("PSCW") noted that the changes

made to the transmission line in 1995 would be an upgrade that
would "allow electric distribution system improvements to occur"

                                         12
                                                                Nos.   2014AP2278 & 2014AP2279



and noted that the old lines were incapable of providing the

electricity needed in the area.

    ¶31     Although      the    holder          of     a   dominant       estate         may     take

advantage    of    advances          in    technology           to     make     more       full    or

convenient use of the right(s) granted within the easement, the

dominant    estate's      ability          to        take   advantage         of    advances        in

technology is not unlimited.                    The dominant estate may not "cause

unreasonable      damage        to        the        servient        estate        or     interfere

unreasonably      with    its        enjoyment."                Restatement             (Third)     of

Property:    Servitudes § 4.10.                  Thus, any changes in the dominant

estate's    use   may    not    place           an    undue     burden     on      the     servient

estate.       See       Hunter,           78     Wis. 2d at          344      ("The        dominant

owner's . . . interest is not an estate in land, but rather a

right to use the land of another for a special purpose not

inconsistent      with    the    general             property     in    the        owner.").         A

change in use that places such a burden on the servient estate

is outside the scope of the dominant estate's right to use.                                        See

Grygiel, 328 Wis. 2d 436, ¶34.
    ¶32     The change from wood to steel placed no undue burden

on the servient estate.               It is undisputed that steel poles can

support more weight than wood poles and allow for longer spans

between poles.      This means fewer poles are needed to support the

upgraded transmission line, and the Garzas have failed to show

how the placement of fewer supporting structures——regardless of

what they are constructed of——along the route of the easement

places more of a burden on the servient estate because there are
fewer of them.           See id., ¶23 (quoting Millen v. Thomas, 201
                                                 13
                                                       Nos.    2014AP2278 & 2014AP2279



Wis. 2d 675, 683-85, 550 N.W.2d 134 (Ct. App. 1996)).                            The steel

poles were also constructed within the boundary established by

the 1969 easement, which means the steel poles do not occupy any

additional space.           Accordingly, no showing has been made that an

undue burden was placed on the servient estate.

       2.    The Significance of the Phrase "Comprising Wood Pole

                                       Structures"

       ¶33    Nevertheless, the Garzas argue that the language of

the 1969 easement expressly forecloses ATC from installing steel

poles because the 1969 easement refers to the transmission line

as "comprising wood pole structures."                 However, we conclude that

this    language      places    no      limitation    on    ATC's   right         to   take

advantage       of     reasonable          advances    in     technology           because

"comprising wood pole structures" is language of description,

not circumscription.

       ¶34    At the beginning of the easement, the context suggests

the parties intention that the 1969 easement be for the purpose

of constructing and operating a transmission line:                          Notably, the
1969 easement is titled "Transmission Line Easement" (and not,

for    example,       "Easement      for    the   Construction         of     Wood     Pole

Structures"), and the first right granted in the 1969 easement

is    the    right    "to     erect,     maintain     and   operate         an    electric

transmission         line."       The      language   within     the        easement    is

reflective of the parties' intent that the 1969 easement be for

the construction and operation of a transmission line.                           There is

no indication that the parties intended to place any sort of
limitation      on     either     the      construction     material        or    on   the
                                             14
                                                              Nos.    2014AP2278 & 2014AP2279



dominant estate holder's right "to erect, maintain and operate

an electric transmission line."

       ¶35       The 1969 easement goes on to grant to the "Grantee,

its successors and assigns" the right to, "from time to time

determine," the type of conductors, wires, etc. to be used "for

transmitting           electric      current       over    and    across"     the     property.

Furthermore, the easement grants the right to enter the property

"for the purpose of erecting said line, and changing, repairing,

patrol[l]ing, replacing and removing the same," and the right

"to do any and all other acts necessary in the proper erection,

maintenance, safeguarding, and operation of said line."

       ¶36       Read as a whole,11 this language reflects an intention

on the part of the parties to the 1969 easement to grant the

dominant estate holder the ability to construct and operate a

transmission line.                Additional terms touch upon such concepts as

"changing"            and   "replacing"        that       indicate     that     the    parties

intended         the    dominant     estate     holder       to    have   the    ability    to

change its use in a way that allows for the continued operation
of the transmission line.                   Cf. Wis. Pub. Serv. Corp. v. Andrews,

2009        WI    App       30,     ¶12,     316      Wis. 2d 734,        766       N.W.2d 232

(interpreting "reconstruct" to allow the dominant estate holder

to upgrade a transmission line from 161 kV to 345 kV).

       ¶37       In    addition,      the    1969     easement       allows   the     dominant

estate holder discretion to determine how the transmission line

       11
       See Borek Cranberry Marsh, Inc. v. Jackson County, 2010
WI 95, ¶¶31-32, 328 Wis. 2d 613, 785 N.W.2d 615.


                                                15
                                                      Nos.    2014AP2278 & 2014AP2279



should     be       constructed.     The    1969    easement    starts      with   the

following grant of rights:

         [T]he perpetual right, privilege and easement to
         erect, maintain and operate an electric transmission
         line, comprising wood pole structures conductors and
         other wires, counterpoises, guy wires, braces and
         other usual appendages and appurtenances of such kind
         as said Grantee, its successors and assigns, may from
         time to time determine, for transmitting electric
         current over and across [the property].
But, it does not end there.                The parties also included a right

in the 1969 easement that grants discretion to the dominant

estate to determine what is "necessary in the proper erection,

maintenance, safeguarding, and operation of said line."                      Perhaps

most tellingly, what the parties did not include was a provision

requiring that the transmission line be limited to being placed

on   a    wood       pole   structure.       See    Atkinson    v.    Mentzel,     211

Wis. 2d 628, 638-39, 566 N.W.2d 158 (Ct. App. 1997) (limiting

the uses granted in an easement to anything other than retail

sales because the easement granted "access for all uses of said

property other than retail sales").

         ¶38    It is true that the right "to erect, maintain and

operate        an    electric   transmission       line"   is   followed     by    the

language "comprising wood pole structures."                     However, we must

read      "comprising       wood   pole    structures"       within   the    context

described above, which indicates that the parties did not intend

to limit the transmission line to a wood pole structure.                           See

Borek, 328 Wis. 2d 613, ¶¶31-32 (using the easement's title——
"Easement for Flowage Rights"——and other language contained in


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                                                                     Nos.    2014AP2278 & 2014AP2279



the deed of easement to interpret the meaning of "heirs and

assigns").        We will not take "comprising wood pole structures"

to place a limit on the dominant estate holder's right to use

the servient estate for a transmission line when the entirety of

the 1969 easement indicates there is no such limit:                                           the title

of     the   1969      easement          ("Transmission               Line        Easement"),         the

language     of   the       first       right       granted          to     the    dominant       estate

holder, and the additional rights granted to the dominant estate

to, inter alia, change and replace the transmission line and to

take    actions     considered           necessary             for    the       operation        of   the

transmission        line         indicate       the        dominant          estate       holder       has

flexibility in its right to use the servient estate for the

transmission line.

 3.     The Present Use Is Consistent with the Purpose of the 1969

                                              Easement

       ¶39   "The use of the easement must be in accordance with

and confined to the terms and purposes of the grant."                                            Hunter,

78    Wis. 2d at       343;       see       also     Grygiel,             328     Wis. 2d 436,         ¶36
(interpreting          a    deed       of     easement          for         ingress       and     egress

consistently        with         the    purpose           for    which          the     easement      was

granted——access to the defendant's property).                                     In this case, the

purpose      of   the       1969       easement           is    to        transmit       electricity.

Therefore,        elevating             the     phrase           "comprising              wood        pole

structures"       to       the    status       of     a    limitation             on    the     dominant

estate's     ability        to     operate         the     transmission                line   would    be

inconsistent with the underlying purpose of the 1969 easement,
namely to transmit electricity.                            See AKG Real Estate, LLC v.
                                                   17
                                                       Nos.   2014AP2278 & 2014AP2279



Kosterman, 2006 WI 106, ¶¶23-24, 296 Wis. 2d 1, 717 N.W.2d 835

(refusing to allow the width of an easement for ingress and

egress to determine that the easement's purpose was for building

a public road because the easement width (66 feet) was the exact

width needed to build a public road).

    ¶40      Interpreting the 1969 easement to permit the use of

other   materials      such      as   steel    is    consistent    with   the    1969

easement's purpose to transmit electricity because, as the PSCW

recognized    when     it      approved   the    application      to   upgrade    the

transmission      line,     transmission        of   the   necessary    voltage    of

electric current using the original transmission line on the

original structure was no longer feasible.

                          4.    The PSCW Authorization

    ¶41      As   an   alternative        argument,     the   Garzas    argue    that

Point 33 of the PSCW's authorization to upgrade the transmission

line terminated the 1969 easement.               Point 33 states:

    That WEPCO and WPS shall remove the wires and
    structures of all existing 34 kV, 46 kV, 69 kV, and
    115 kV lines retired or taken out of operation as part
    of this project, and properly backfill all holes where
    structures are removed.    Easements for rights-of-way
    of removed lines shall be terminated, forfeiting all
    rights to the landowners.
Like the circuit court, we conclude this argument is unavailing.

As the circuit court said,

    it is clear that paragraph 33 only terminates the
    easements where the entire installation was removed,
    not where a new facility was installed replacing the
    old.   It would be nonsensical to find that the PSCW
    was ordering easements to be terminated where it was
    simultaneously   ordering  new   facilities  to   be
    constructed.

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                                                           Nos.      2014AP2278 & 2014AP2279



When    read    in   the    context      of    the      rest      of    the        PSCW's    1994

authorization,       it    is   therefore         clear    that        the    PSCW     did    not

intend to terminate rights-of-way for transmission lines being

replaced but, rather, intended only to terminate rights-of-way

for transmission lines that were being removed and not replaced.

The rights of ATC under the terms of the 1969 easement are

unaffected by this term.

                                 5.    Visual Blight

       ¶42     The   Garzas     also    claim       that       the     transmission          line

causes      visual   blight;     however,          we   decline         to     address       this

argument because it was not properly developed and argued.12                                  See

State v. Gulrud, 140 Wis. 2d 721, 730, 412 N.W.2d 139 (Ct. App.

1987) (declining to address an argument because the defendant

did not "explain his contention or develop his argument").

                                  IV.       CONCLUSION

       ¶43     We hold that, under the 1969 deed of easement, ATC has

the right to enter the Garzas' property to both trim and remove

the    trees    that      threaten     or     endanger         the     operation       of    the
relevant       transmission      line.            The   1969      easement's          language

"comprising wood pole structures" is language of description,

not    circumscription,         and     as    such,       it    does         not    limit     the

transmission line to being constructed on wood poles.                                  Rather,

the 1969 easement grants to the dominant estate (here ATC) the

right to make the change from wood poles to steel poles.                                        A

       12
       The Garzas raised visual blight in a few footnotes in
their brief.


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                                                 Nos.     2014AP2278 & 2014AP2279



dominant estate has the right to do what is reasonably necessary

to   enjoy   the   right   to   use   granted   in    a   deed    of    easement,

provided no undue burden is placed on the servient estate.

      By   the   Court.—The     decision   of   the   court      of    appeals   is

reversed.




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           Nos.   2014AP2278 & 2014AP2279



APPENDIX




21
    Nos.   2014AP2278 & 2014AP2279




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