EASEMENTS – THE GIFTS THAT KEEP ON GIVING
May 12, 2017
An easement can last many years, perhaps forever. Sometimes people are caught unaware by the typically permanent nature of an easement because there does not seem to be any issues with the current usage of the property or the purpose of the easement. However, the easement may be assigned and the usage changed or expanded, if consistent with a provision permitting such changes. Also, future expansion of the owner’s operations will have to take into account the current placement of the easement.
Unlike sales and purchases of real estate or leases, most people are not as familiar with the concept of easements. Easements generally involve the transfer of some, but not all, rights regarding use of land, and are usually permanent in nature. Easements can look innocent on the surface, but because most exist in perpetuity, they may cause unanticipated problems in the future. Also, there is no such thing as a “standard form” despite the fact that many utility companies and others claim that they are only requesting that a standard form be signed.
There is no single, concise definition of an easement in Wisconsin law, but it helps to think of it as a nonpossessory interest in land that gives the holder the right to use land owned by another for a specific use. Common examples include easements for utilities or access by adjacent land owners.
The fact that an easement is nonpossessory does not mean that the holder of the easement can’t come onto the land. Indeed, an easement usually anticipates that workers will enter the land for purposes of maintaining or replacing utilities or that vehicles may drive on an access road. Also, the fact that the easement is nonpossessory does not translate into the land owner being entitled to full possession of the land either. Indeed, the owner of the land may not build any improvements that would interfere with the easement holder’s use of the easement area. Thus, the owner of the land is usually restricted as to the types of improvements that are possible over the easement area, thus hindering options for expansion in the future.
Most easements are granted for a specific use, meaning that other uses are impermissible. For example, an easement granted for use as a utility line could not be used as private road. It is important to carefully review the types of uses permitted in an easement to ensure that they are limited to only the type of use presently anticipated. Otherwise, fifty years from now there may be an unpleasant surprise. Another issue is whether the intensity of the use may increase in the future.
Some standard forms of utility easements will permit the holder of the easement to assign it to other utility companies. For example, it may be possible that the easement holder may assign it to a telecommunications provider, without the landowner’s knowledge or receipt of any payment from the telecommunications provider to use the easement. Another concern is that while a landowner may have been willing to consent to use of an easement for electrical lines, that is not true with regard to a gas pipeline or vice versa. Expressly limiting the type of usage requires that another agreement must occur before a new type of utility usage commences.
Standard forms may also give the holder of the easement unfettered access to all the other portions of the landowner’s land for construction or maintenance purposes. A good practice is to define the boundaries of the additional area required for construction or other work, and to insert a restriction that the easement holder will not unreasonably interfere with the business or other operations of the landowner.
Landowners also need to be concerned about specific obligations being created by the easement. Some standard forms require the landowner to maintain a certain elevation of the ground, which not only may result in costs being incurred to keep the ground at such a level, but liability for failure to meet such an obligation.
A recent case involved a 1969 easement given by landowners to a power company for the “perpetual right, privilege and easement to erect, maintain and operate an electric transmission line, comprising wood pole structures … and other usual appendages and appurtenances of such kind. …” The easement provides that the power company, and its successors and assigns, could permit the easement holder to enter the property to clear all brush and trees, within 40 feet of each side of the power line. In 1995, the power company replaced the wood poles with steel poles, and assigned its easement to another power company in 2001. The current landowners purchased this land in 2004. Because easements “run with the land,” the current landowners were subject to the terms of the easement granted by the previous landowners. Litigation commenced in 2011 after the current landowners were notified that the power company was going to enter their property to trim and remove trees and brush within the 40 feet area on each side of the power line. The landowners did not want that to occur, and challenged whether the easement was still valid because of the replacement of wooden poles with steel poles. After the trial court ruled on some motions, the case was appealed to the Court of Appeals, which held that the easement was limited to lines being constructed on a wood pole structure, and therefore the entire easement no longer existed. The case was appealed to the Wisconsin Supreme Court, which issued a decision on April 13, 2017 that the easement language should not be limited to wood pole structures. This Court stated that it has been “long recognized that, implied in every easement, unless otherwise stated, is the right of the [easement holder] to do what is reasonably necessary to enjoy the easement.” The Court also cited other authority with approval that “[t]he manner, frequency, and intensity of the use may change over time to take advantage of developments in technology and to accommodate normal development of [easement holder’s property] or enterprise benefited by the [easement].” The Court also noted that an important factor taken into consideration was that the easement did not include a provision requiring that the transmission line be limited to being placed on a wood pole structure. Thus, while it may not make much of a difference, if any, to a landowner whether poles are wood or steel, the moral of this case is that courts may feel free to interpret old easements to permit new types of uses unless there is an express restriction against doing so.
One way to address the unknown future is to include a provision permitting the landowner to relocate the easement at the landowner’s expense, so long as the easement holder shall have substantially the same benefit from the easement as from the prior location. Another way would be to limit the life of the easement, although it may be unrealistic to expect a utility company to be able to agree to that under most circumstances. However, it may be reasonable to seek a time limit on the use of an easement as a parking lot or private drive. Finally, the easement language should be carefully reviewed to ensure the purpose and usage is as narrowly defined as possible, and includes language that expressly limits the easement to the stated purpose and usage.
For questions regarding this article, please contact the author, Attorney Ann L. Patteson (email: firstname.lastname@example.org; telephone: 844.833.0825), or your Strang, Patteson, Renning, Lewis, & Lacy, s.c., attorney.
 Jesse S. Ishikawa & Dean B. Richards, Wisconsin Law of Easements and Restrictive Covenants (4th ed. 2009), § 1.3.
 Id. at § 1.4.
 Id. at § 1.5.
 In re Garza, 2017 WI 35, ¶ 4.
 Id., ¶ 17.
 Id., ¶ 29.
 Id., ¶ 34.
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