Enbridge Energy v. Engelking (WI)

Summary: A right-of-way easement, when not particularly described, encompasses what is reasonably convenient and suitable. It cannot be applied to the entire property.

Enbridge Energy, Ltd. P'ship v. Engelking, 2013 WI App 55, 347 Wis. 2d 550, 830 N.W.2d 723 review denied, 2013 WI 82, 350 Wis. 2d 705, 839 N.W.2d 867.


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Facts: The Engelkings owned a 20-acre parcel of land subject to an appurtenant pipeline easement. The property’s previous owner had entered into the easement agreement with Enbridge, who owned the pipeline. Specifically designated a “RIGHT OF WAY GRANT,” the easement permitted Enbridge to perform development and maintenance on its pipelines. However, under the agreement, Enbridge paid consideration to the property owner for each additional rod of pipe it installed after the initial pipeline.

When the Engelkings came into possession of the property, Enbridge attempted to negotiate the construction of additional pipelines twice. Both negotiations resulted in no agreement, but Enbridge constructed pipelines nonetheless and did not compensate the Engelkings. The Engelkings subsequently filed suit seeking a permanent injunction. They were initially given a temporary injunction, which was denied along with a permanent injunction after a trial court hearing. Enbridge then filed a claim alleging breach of contract, seeking declaratory judgment and an injunction. The Engelkings filed several counterclaims which were denied, including trespass, ejectment, and damages for property damage. They also sought declaratory judgment concerning the parties’ future rights under the easement. The trial court awarded Engelkings compensation for the pipeline installations, but held that the easement was located across the entirety of the 20-acre parcel. The Engelkings appealed.


Holding: Affirmed in Part; Reversed in Part. The issues before the court were (1) whether the circuit court erroneously interpreted the pipeline easement, and (2) whether the Engelkings’ trespass or ejectment counterclaims were erroneously dismissed.

Regarding the scope of the easement, the court held that a right-of-way easement that is not particularly described cannot be understood to contain the entire parcel and remanded the issue. Quoting Atkinson v. Mentzel, 211 Wis.2d 628, 641-42, 566 N.W.2d 158 (Ct.App.1997), the court added, “When the location of a right-of-way easement is not defined by the grant, a reasonably convenient and suitable way is presumed to be intended, and the right cannot be exercised over the whole of the land. If the parties cannot agree…the court has the power to affirmatively and specifically determine the easement’s location…and must proceed with due regard for the rights of the parties.” The court reasoned that if the easement intended to encompass the entire 20-acres, there would be no need to grant Enbridge a right of ingress and egress. Therefore, the circuit court was charged with determining the location of the right-of-way.

The court next addressed the issue of the timing of payment for Enbridge’s additional pipelines. The court affirmed the circuit court’s opinion, holding that the ambiguous use of the word “upon” meant that payment could be made at any time before, during, or after construction of the pipeline. The court then addressed the trespass and encroachment counterclaims, holding in both instances that the claims should be reinstated.


Opinion Year: 
By: ATG Underwriting Department | Posted on: Tue, 08/19/2014 - 2:46pm