Claudia B. Bauer, individually and Claudia B. Bauer, as Trustee of the Claudia B. Bauer Revocable Trust 2010 Restatement, Plaintiffs-Appellants-Petitioners, v. Wisconsin Energy Corporation d/b/a WE Energies, Defendant-Respondent, Dean Gatziolis, individually, Susan W. Gatziolis, individually, Engerman Contracting, Inc., Dean Gatziolis, as Trustee of the Gatziolis Family Trust and Susan W. Gatziolis, as Trustee of the Gatziolis Family Trust, Defendants.
2019AP2090
Supreme Court of Wisconsin
February 24, 2022
2022 WI 11
Daniel Steven Johnson
SOURCE OF APPEAL: Circuit, Walworth. SUBMITTED ON BRIEFS: November 16, 2021.
REVIEW OF DECISION OF THE COURT OF APPEALS From an unpublished summary disposition issued January 20, 2021
JUSTICES: KAROFSKY, J., delivered the majority opinion for a unanimous Court. NOT PARTICIPATING:
ATTORNEYS: For the plaintiffs-appellants-petitioners, there were briefs filed by Stephen E. Kravit, Leila N. Sahar, Gerald S. Kerska and Kravit, Hovel & Krawczyk, S.C., Milwaukee. There was an oral argument by Stephen E. Kravit.
For the defendant-respondent, there was a brief filed by Miles W. Hartley and Guttormsen & Hartley, LLP, Kenosha. There was an oral argument by Miles W. Hartley.
NOTICE This opiniоn is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
FILED FEB 24, 2022 Sheila T. Reiff Clerk of Supreme Court
KAROFSKY, J., delivered the majority opinion for a unanimous Court.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 JILL J.
¶2 Under
¶3 We conclude that the public utility here met the required continuous use for ten years prior to Bauer‘s purchase of the property, notwithstanding periodic repairs during that period. We further conclude that
I. BACKGROUND
¶4 In July 1980, beneath a property along Geneva Lake then owned by Virginia Garside, the Wisconsin Energy Corporation (WEC) installed a single half-inch diameter, plastic natural-gas pipe line.2 WEC installed the line with Garside‘s written permission “to cross [her] property . . . to put a gas line into the [neighboring home],” now owned by the Gatziolis family. Of the roughly 285-foot line, 135.49 feet crosses underneath the Garside property.
¶5 WEC periodically serviced the gas line. Service records show that in 1984 WEC “relocated” thе gas line “due to customer requests.” “Relocation,” WEC‘s representative averred, does not necessarily mean the line was moved but could also mean that a broken portion was replaced by splicing in a new piece of pipe. In 1988, WEC replaced 84 feet of the line by splicing new pipe of the same diameter and material into the existing line. In 1989, WEC again “relocated” the gas line “due to customer requests.” Throughout each of these maintenance efforts, the line continued its existing gas service to the neighboring home.
¶6 In 1996, Claudia Bauer purchased the Garside property with no actual knowledge of the underground gas line‘s existence. She first learned of the line in 2014 when WEC contacted her about acquiring an easement to upgrade the gas line‘s diameter by a half-inch to bettеr service the neighboring Gatziolises’ planned home reconstruction. Bauer declined to grant the larger easement, which ultimately proved unnecessary after WEC determined that the existing line could adequately serve the Gatziolises’ larger home.
¶7 Nevertheless, Bauer sued WEC as well as the Gatziolises and their contractor.3 Relevant to this appeal, Bauer sought a declaration that WEC lacked an easement to continue operating the gas line under her property and brought trespass and ejectment claims against WEC.4 WEC counterclaimed for its own declaration that it had obtained a prescriptive right to continue using the gas line pursuant to
¶9 Ten days after filing her reply brief, on the eve of the reconsideration hearing, Bauer filed a declaration with twо exhibits, both of which were photos that she maintained showed two separate gas lines at “two different,” but unspecified, locations exposed when she excavated her property. She argued these images created an additional genuine dispute over the existence of two separate gas lines beneath her property. The circuit court denied Bauer‘s reconsiderаtion motion, concluding that Bauer neither presented newly discovered evidence nor established any manifest error.
¶10 On appeal, the court of appeals summarily affirmed both the circuit court‘s grant of summary judgment in favor of WEC and its order denying Bauer‘s reconsideration motion. Bauer v. Wis. Energy Corp., 2019AP2090, unpublished order (Wis. Ct. App. Jan. 20, 2021). We granted Bauer‘s petition for review.
II. STANDARD OF REVIEW
¶11 This case requires that we review the appropriateness of summary judgment and reconsideration, which includes interpreting
III. ANALYSIS
¶12 When reviewing summary judgment, we generally first define the applicable law and then decide if a genuine dispute exists as to any fact material to the law‘s application. But here, Bauer asked to expand the summary-judgment record via her motion to reconsider, so we must start there to define the appropriate scope of the record on review.
A. Reconsideration
¶13 In our first review of the merits of a circuit court‘s reconsideration decision, we agree with the approach developed by the court of appeals. As that court has explained, a circuit court possesses inherent discretion to entertain motions to reconsider “nonfinal” pre-trial rulings.7
¶14 Newly discovered evidence is not “new evidence that could have been introduced at the original summary judgment phase.” Id., ¶46. Similarly, a “manifest error” must be more than disappointment or umbrage with the ruling; it requires a heightened showing of “wholesale disregard, misapplication, or failure to recognize controlling precedent.” Id., ¶44 (quoting Oto, 224 F.3d at 606). Simply stated, “a motion for rеconsideration is not a vehicle for making new arguments or submitting new evidentiary materials [that could have been submitted earlier] after the court has decided a motion for summary judgment.” Lynch v. Crossroads Counseling Ctr., Inc., 2004 WI App 114, ¶23, 275 Wis. 2d 171, 684 N.W.2d 141.
¶15 Yet Bauer‘s reconsideration motion did just that, according to the circuit court. Her motion raised three previously unalleged grounds. Two grounds were new constitutional claims. The third ground was a claimed factual dispute over WEC‘s continuous use of the gas line based on her “re-review” of the service records and the alleged newly discovered evidence—two photos of uncovered utility lines at “two different locations” on her property. The circuit court denied reconsideration, reasoning that:
- No manifest error existed as to the constitutional claims because Bauer had an imperfect-title rеmedy and lacked standing to raise a taking claim as the prescriptive right vested before she owned the property;
- Photos of additional pipe beneath the Bauer property were not newly discovered because the service records in the original summary-judgment record had always indicated that new piping was spliced into the original line to repair it, leaving the inactive рipe in the ground; and
- Even if they were newly discovered, the dispute they raised was immaterial as no evidence suggested that the additional piping was anything more than reasonable maintenance of a single gas line permitted under the original 1980 grant of permission.
¶16 We see no error in the circuit court‘s rationale that would justify reversal. Applying the law set forth above to the relevant facts befоre it, the circuit court reasonably concluded that Bauer lacked necessary factual predicates on both constitutional claims and offered no newly discovered evidence warranting reconsideration. See Borreson, 292 Wis. 2d 231, ¶6. Because the circuit court permissibly declined to accept additional evidence and legal arguments via Bauer‘s reconsideration motion, we disrеgard that material in reviewing the underlying summary-judgment decision.8 See Clark v. League of Wis. Muns. Mut. Ins. Co., 2021 WI App 21, ¶19 n.8, 397 Wis. 2d 220, 959 N.W.2d 648.
B. Summary Judgment
¶17 We begin our review of summary judgment with the legal requirements to obtain a prescriptive easement, both at common law and as legislatively codified. We then assess whether any genuine disputes exist as to the facts material to WEC‘s claimed prescriptive right that would render summary judgment improper.
1. Prescriptive rights
¶18 At common law, a party acquired a prescriptive right in another‘s real property upon: (1) an adverse use hostile and inconsistent with the exercise of the titleholder‘s rights; (2) which was visible, open, and notorious; (3) under an open claim of right; and (4) was continuous and uninterrupted for twenty years. See, e.g., Ludke v. Egan, 87 Wis. 2d 221, 230, 274 N.W.2d 641 (1979). With respect to public utilities such as WEC,9 the legislature supplanted the common law with
¶19 Both the common law and
¶20 The parties dispute the meaning of the legislature‘s omission. WEC urges that the omission demonstrates legislative elimination of these two requirements. Bauer counters that the legislature would need to be more “clear, unаmbiguous, and peremptory” than mere silence to abrogate those common-law requirements. See, e.g., United Am., LLC v. DOT, 2021 WI 44, ¶15, 397 Wis. 2d 42, 959 N.W.2d 317. Alternatively, WEC suggests that those two requirements are mere subparts of the “adversity” element, such that when the legislature eliminated the adversity element it simultaneously eliminated both “visible, open and notorious” and “under an open claim of right.” Bauer responds that these requirements are all conceptually distinct.
¶21 With respect to the claim-of-right requirement, context makes clear that
¶22 The same cannot be said about the visible, open, and notorious requirement. Such a use is not inherently inconsistent with a permissive license. That said, we need not and do not address whether
2. WEC‘s claimed prescriptive right
¶23 We assume without deciding that
¶24 A continuous use is one that is neither voluntarily abandoned by the party claiming a prescriptive right nor interrupted by an act of the landowner or a third party. See Red Star Yeast & Prods. Co. v. Merch. Corp., 4 Wis. 2d 327, 335, 90 N.W.2d 777 (1958); see also 25 Am. Jur. 2d Easements and Liсenses § 51. Whether a use is abandoned or interrupted will “depend[] on the nature and the character of the right claimed.” Shellow v. Hagen, 9 Wis. 2d 506, 512, 101 N.W.2d 694 (1960). A use remains continuous even when the user takes measures reasonably necessary to maintain or improve the use, so long as those measures are not inconsistent with the use‘s original nature and character nor more burdensome on the landowner. See Garza v. Am. Transm. Co. LLC, 2017 WI 35, ¶29, 374 Wis. 2d 555, 893 N.W.2d 1; Bino v. City of Hurley, 14 Wis. 2d 101, 106, 109, 109 N.W.2d 544 (1961).
¶25 Here, the nature and character of WEC‘s claimed right is to provide gas service to a neighboring home via an underground plastic pipe. That use began in July 1980 and WEC contends it continued uninterrupted through July 1990, at which point it ripened into a prescriptive right. Bauer counters that a genuine dispute exists as to whether WEC‘s periodic repairs to the line disrupted its continuous use. According to Bauer, those repairs restаrted the ten-year vesting period, so WEC‘S prescriptive right could not vest until after she purchased the property in 1996.
¶26 Bauer‘s argument misses the mark. The evidence reveals that WEC‘s replacement and “relocat[ion]” of the line meant it repaired the line by splicing in a new piece of pipe to the original one. No evidence suggests that the character of the use—supplying gas along a single conduit—ever changed. Nor did these repairs increase the burden on the landowner; any land rendered unbuildable by the original line merely remained so. Accordingly, nothing in the record creates a genuine
¶27 That leaves the “visible, open, and notorious” requirement. A visible, open, and notorious use is one that would put a reasonably diligent landowner on notice of the use. See Kurz v. Miller, 89 Wis. 426, 433-34, 62 N.W. 182 (1895). The requirement‘s role is to give the landowner “knowledge and [an] оpportunity to assert his or her rights.” 25 Am. Jur. 2d Easements and Licenses § 42. Consistent with that objective, actual knowledge of the use satisfies this requirement. See Restatement (Third) of Property (Servitudes) § 2.17 (2000); 28A C.J.S. Easements § 33; Bruce & Ely, Jr., supra § 5:13. Bauer does not dispute her predecessor‘s actual knowledge of WEC‘s use, evidenced by the written permission Garside granted WEC. So, here too, the record permits one conclusion: WEC‘s use was visible, open, and notorious to Garside.
¶28 Absent a genuine dispute over WEC‘s continuous use from July 1980 through July 1990 or Garside‘s actual knowledge of that use, we conclude that summary judgment is appropriate. We therefore affirm the circuit court‘s declaration that WEC acquired a prescriptive right across the Garside property to deliver natural gas to the neighboring home before Bauer owned the property. And because Bauer purchased the property subject to WEC‘s vested right, we further affirm the dismissal of her trespass and ejectment claims against WEC.
IV. CONCLUSION
¶29 We affirm both the circuit court‘s grant of summary judgment in WEC‘s favor and its denial of reconsideration.
By the Court.—The decision of the court of appeals is affirmed.