As the World Changes, It May Affect Your Easements

We all think of an easement as being “written in stone,” forever setting forth a right to use or access another’s property.  To some extent that is a correct view of easements.  A recent case before the Wisconsin Court of Appeals (In re: Garza, Nov. 19, 2015), however, shows that while the language of an easement does not change, the world does, and those changes may affect what is allowed under the easement.  

In that case, a utility company originally acquired an easement in 1969.  The easement granted the utility company the perpetual right to erect, maintain and operate a power line supported by “wood” beams, and to clear all trees and other vegetation within a 40-foot radius of the power line on the grantor’s parcel. At that time, utility companies predominantly supported power lines with wood beams.  Years after the utility company originally acquired the easement, utility companies shifted to using steel beams to support power lines because of their superior strength, durability, voltage capacity, and overall functionality.  In line with this trend, the utility company replaced the wood beams on the property with steel beams in 1994.

In 2011, years after the installation of the steel beams and after the subdivision and transfer of the property, the utility company notified a land owner that it would enter and remove trees and other vegetation from that part of the property located within the easement area.  The disgruntled owner denied the utility company access to his property.  He argued that the utility company had the right under the easement to remove trees and other vegetation within a 40-foot radius of a power line supported by “wood” beams, not steel beams.  The utility company conversely argued that the easement’s purpose was to give the utility company the right to conduct electricity over the easement area, with the ability to change the power lines and support beams as needed or in response to technological advances.

Ignoring the utility company’s contention that the owner’s narrow construction of the easement language frustrated the easement’s purpose, the Court of Appeals sided with the owner.  Because the easement expressly allowed only the installation of a “wood” pole structure and maintenance of the area surrounding it, the Court held that the utility company needed a new easement if it desired to install a steel pole structure and maintain the area surrounding it.

This case is a great lesson for those who draft or possess an easement. An easement must be construed in light of its literal wording.  Therefore, one must craft easements with the freedom to adapt to changes that may come, even though one might not be able to anticipate those specific changes.  Likewise, if you currently possess an easement, it should be reviewed to make sure that it still allows you to use the property in the manner that you are using it.  The language of the easement may be set in stone, but the world is not.

If you have questions about this article, please contact its author, Adam Bardosy, at abardosy@mzmilw.com.

Bardosy