Claudia B. Bauer v. Wisconsin Energy Corporation

2022 WI 11

SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP2090

COMPLETE TITLE: 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.

REVIEW OF DECISION OF THE COURT OF APPEALS
From an unpublished summary disposition issued
January 20, 2021

OPINION FILED: February 24, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 16, 2021

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Walworth
JUDGE: Daniel Steven Johnson

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.

2
 2022 WI 11
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP2090
(L.C. No. 2016CV215)

STATE OF WISCONSIN : IN SUPREME COURT

Claudia B. Bauer, individually and Claudia B.
Bauer, as Trustee of the Claudia B. Bauer
Revocable Trust 2010 Restatement,

Plaintiffs-Appellants-Petitioners,

v. FILED
Wisconsin Energy Corporation d/b/a WE Energies,
FEB 24, 2022
Defendant-Respondent,
Sheila T. Reiff
Clerk of Supreme Court
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.

KAROFSKY, J., delivered the majority opinion for a unanimous
Court.

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

¶1 JILL J. KAROFSKY, J. Claudia Bauer seeks the removal

of a natural-gas line first installed beneath her property over

41 years ago by a public utility with the permission of the
 No. 2019AP2090

property's then-owner, Virginia Garside. We are asked whether

Garside's grant of permission ripened into a prescriptive right

under Wis. Stat. § 893.28(2) (2019-20),1 allowing the public

utility to continue using the line over Bauer's protests. We

conclude that it did.

¶2 Under § 893.28(2), a public utility's continuous use

of another's real property for at least 10 years establishes a

prescriptive right to continue that use. This represents a

marked change from the common-law requirements under which a

party's use of another's real property became a prescriptive

right upon: (1) an adverse use; (2) which is visible, open, and

notorious; (3) under an open claim of right; and (4) continuous

for twenty years. The parties agree that § 893.28(2) displaced

the common-law adversity requirement and reduced the vesting

period from 20 to ten years. They dispute whether that statute

also abrogated the "visible, open, and notorious" and "under an

open claim of right" requirements.

¶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 § 893.28(2) necessarily

abrogated the claim-of-right requirement when it removed the

adversity requirement. We do not reach, however, whether that

1This statute has remained unchanged in all relevant
respects during the applicable time period and up through the
current version of the Wisconsin Statutes. Therefore, all
subsequent references to the Wisconsin Statutes are to the
current 2019-20 version unless otherwise indicated.
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statute still requires a visible, open, and notorious use

because, regardless of the answer, Garside's actual knowledge of

the gas line in this case would satisfy that requirement.

Accordingly, under § 893.28(2) the public utility's prescriptive

right to continue using the gas line vested prior to Bauer's

purchase of the property, and her claims against the public

utility were properly dismissed.

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" the 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

The gas line was installed by the Wisconsin Southern Gas
2

Company, which later merged with the Wisconsin Natural Gas
Company, which in turn merged with WEC. This opinion will
simply refer to these companies collectively as WEC.
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 No. 2019AP2090

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 better 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 Wis. Stat.
§ 893.28(2). The circuit court agreed with WEC and granted it

summary judgment, declaring that WEC had acquired a prescriptive

Bauer also sued her title insurance company, who was later
3

dismissed from the suit by stipulation of the parties.

Bauer's
4 claims against the Gatziolises and their
contractor are not before this court.
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 No. 2019AP2090

easement5 across Bauer's property under § 893.28(2) and

dismissing the trespass and ejectment claims.6

¶8 Nearly eight months later, Bauer asked the circuit

court to reconsider its summary-judgment decision. Her brief in

support of reconsideration argued only that the circuit court's

order failed to account for her previously unalleged

constitutional rights to either just compensation for the taking

of property or a court-made remedy to cure all alleged injuries

or wrongs against her. Then, in her reply brief, Bauer raised

for the first time an argument that summary judgment was

inappropriate because, based on a "re-review" of WEC's summary-

judgment submissions, there existed a genuine dispute regarding

the effect of the 1984 and 1989 "relocations" and the 1988 pipe

replacement on the continuousness of WEC's use of the gas line.

¶9 Ten days after filing her reply brief, on the eve of

the reconsideration hearing, Bauer filed a declaration with two

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 reconsideration motion, concluding

5This opinion uses "prescriptive easement" and
"prescriptive right" interchangeably. See, e.g., Garza v. Am.
Transm. Co. LLC, 2017 WI 35, ¶23, 374 Wis. 2d 555, 893 N.W.2d 1
("An easement grants a right to use another's land.").
6The Honorable Daniel Steven Johnson of the Walworth County
Circuit Court presided.
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 No. 2019AP2090

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 Wis. Stat. § 893.28(2). Summary judgment is

appropriate when no genuine issue of material fact exists and

the moving party is entitled to a judgment as a matter of law.

Wis. Stat. § 802.08(2); see Stroede v. Soc'y Ins., 2021

WI 43, ¶9, 397 Wis. 2d 17, 959 N.W.2d 305. We review a summary-

judgment decision de novo, using this same methodology. See

Stroede, 397 Wis. 2d 17, ¶9. As for reconsideration, we review

a circuit court's denial of reconsideration for an erroneous
exercise of discretion, meaning that we affirm the circuit

court's decision unless it "fails to examine the relevant facts,

applies the wrong legal standard, or does not employ a

demonstrated rational process to reach a reasonable conclusion."

See Borreson v. Yunto, 2006 WI App 63, ¶6, 292 Wis. 2d 231, 713

N.W.2d 656. Finally, statutory interpretation presents a

question of law that we review de novo. See Stroede, 397

Wis. 2d 17, ¶9.

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 No. 2019AP2090

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 See, e.g., Fritsche v.

Ford Motor Credit Co., 171 Wis. 2d 280, 294-95, 491 N.W.2d 119

(Ct. App. 1992). To succeed, a reconsideration movant must

either present "newly discovered evidence or establish a

manifest error of law or fact." Koepsell's Olde Popcorn Wagons,

Inc. v. Koepsell's Festival Popcorn Wagons, Ltd., 2004
WI App 129, ¶44, 275 Wis. 2d 397, 685 N.W.2d 853 (citing Oto v.

Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)).

¶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

When Bauer moved for reconsideration, the summary-judgment
7

ruling was not final as it lacked the required "THIS JUDGMENT IS
FINAL FOR THE PURPOSES OF APPEAL" statement. See Wambolt v. W.
Bend Mut. Ins. Co., 2007 WI 35, ¶44, 299 Wis. 2d 723, 728
N.W.2d 670.
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 No. 2019AP2090

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

reconsideration 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 remedy 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 pipe in the ground; and
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 No. 2019AP2090

 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 before 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 disregard 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

For this reason, Bauer's third issue presented regarding
8

her constitutional right to a judge-made remedy under Article I,
Section 9 of the Wisconsin Constitution is not properly before
us. Even if it were, our conclusion that WEC acquired the
prescriptive right prior to Bauer purchasing the property means
that she never possessed the right she claimed was injured and
that the "wrong" for which she seeks a remedy was committed not
by WEC but by Garside, who conveyed imperfect title.
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 No. 2019AP2090

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 Wis. Stat.

§ 893.28(2). See § 28, ch. 323, Laws of 1979. Under

§ 893.28(2), a public utility "establishes the prescriptive

right to continue [its] use" of rights in another's real

property upon "[c]ontinuous use of [those] rights . . . for at

least 10 years."

¶19 Both the common law and § 893.28(2) require that the

use be "continuous" for a set period. But the statutory text
diverges from the common-law elements in three significant ways.

First, the statute omits any mention of the use being "adverse"

or "hostile and inconsistent with the exercise of the

titleholder's rights." The parties agree the statute omits that

9 Wisconsin Stat. § 893.28(2) applies to, in addition to
certain utility cooperatives, all "domestic corporation[s]
organized to furnish telegraph or telecommunications service or
transmit heat, power or electric current to the public or for
public purposes." There is no dispute that WEC is such a
corporation, which also falls under the statutory definition of
"public utility." See Wis. Stat. § 196.01(5).
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language so as to allow permissive uses, such as licenses, to

ripen into prescriptive rights. See Williams v. Am.

Transmission Co., LLC, 2007 WI App 246, ¶¶9-15, 306 Wis. 2d 181,

742 N.W.2d 882. Second and also undisputed, the statutory

vesting period is reduced from 20 to ten years. Finally,

§ 893.28(2) contains no mention of the use being either

"visible, open, and notorious" or "under an open claim of

right."

¶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, unambiguous, 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 § 893.28(2) necessarily abrogated it

along with the adversity element. As Bauer concedes, the

legislature drafted § 893.28(2) to allow a permissive use to

ripen into a prescriptive right. See Williams, 306
Wis. 2d 181, ¶¶9-15. But "an open claim of right" is the exact
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opposite of a permissive use. See Ludke, 87 Wis. 2d at 231

(evidence of express permission rebuts the claim-of-right

presumption). The legislature, then, necessarily had to remove

both the adversity and claim-of-right requirements to allow a

permissive use to ripen into a prescriptive right. This

conclusion makes sense in light of the common view that a claim

of right is a subpart of the larger adversity requirement. See,

e.g., Simmons v. Berkeley Elec. Coop., Inc., 797 S.E.2d 387, 392

(S.C. 2016); 28A C.J.S. Easements § 43; John W. Bruce & James W.

Ely, Jr., The Law of Easements & Licenses in Land § 5:8.

¶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 § 893.28(2) still requires a visible,

open, and notorious use because, as explained below, regardless

of how we might answer that question our ultimate conclusion in

this case remains the same. See, e.g., Md. Arms Ltd. P'ship v.

Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15.
2. WEC's claimed prescriptive right

¶23 We assume without deciding that Wis. Stat. § 893.28(2)

still requires a public utility's use be visible, open, and

notorious. Therefore, at issue here is whether WEC's use after

the 1980 grant of permission was: (1) continuous for a period

of ten years; and (2) visible, open and notorious. We conclude

that WEC's use met both conditions prior to Bauer's purchase of

the property.

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¶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

Licenses § 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

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 restarted 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
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 No. 2019AP2090

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

dispute that WEC's actions constituted anything other than

reasonable maintenance on the line to continue its initial

purpose. To the contrary, these activities manifest an ongoing

desire to continue the use rather than interruption or voluntary

abandonment.10 As such, this record supports only one

conclusion: WEC's use was continuous for ten years by

July 1990.

¶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] opportunity 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

Moreover, if repairs disrupted a continuous use, then
10

public utilities would face an unreasonable dilemma whereby
honoring their legal obligations to repair and maintain a line
could mean they risk altogether losing the right to continue
servicing customers via that line. See Wis. Stat.
§§ 182.0175(2m)(c) & 196.745(1)(a); Wis. Admin. Code
§ PSC 135.012 (December 2018).
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 No. 2019AP2090

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.

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1