UTILITY EASEMENTS AND ELECTRICITY: THE ELECTRIFIED TENSION BETWEEN POWER COMPANIES AND TREE OWNERS
Introduction

Power companies aim to provide reliable service. Tree limbs falling on power lines cause a substantial number of power outages. Power companies can be liable for injuries or deaths resulting from contact with power lines. This liability and the need to prevent outages entail trimming trees near power lines. Trimming near power lines may result in unsightly trees. The public outcry over tree trimming spawned new legislation in Illinois. In addition, recent Wisconsin case law has helped define what power companies may do, pursuant to any utility easements that may exist.

Illinois Legislation

In August 2001, the Illinois legislature amended the Public Utilities Act to provide for non-emergency vegetation management activities. 220 ILCS 5/8-505.1. The amendment was in response to public outcry over possible trimming practices proposed by Illinois Power. The proposal provided distances from power lines within which Illinois Power could trim trees. However, the issue of trimming distance remains unresolved by the new legislation.

Section (a)(2) stipulates when and to whom notice of any trimming must be given. Under the Act, notice must be given "no less than 21 days nor more than 90 days before the activities begin." The utility company must notify its affected customers directly. In addition, the company must publish a notice "in a newspaper or newspapers in general circulation and widely distributed within the entire area in which the vegetation management activities ... will occur" to inform affected property owners. The utility company must also provide notice to the mayor of an incorporated municipality or the county board of an unincorporated area.

Section (a)(3) specifies what must be included in the notice to customers and landowners:

  1. Statement of the vegetation management activities planned;
  2. Website address and toll-free telephone number where a written disclosure of all dispute resolution opportunities and processes, rights, and remedies provided by the electric public utility may be obtained;
  3. Statement that the customer and the property owner may appeal the planned vegetation management activities through the electric public utility and the Illinois Commerce Commission;
  4. Toll-free telephone number to communicate with a representative of the electric public utility regarding the vegetation management activities; and
  5. Telephone number of the Consumer Affairs Officer of the Illinois Commerce Commission.

Section (a)(3) further provides that the Illinois Commerce Commission "shall have sole authority to investigate, issue, and hear complaints against the utility ...." The Act also allows municipalities to enact ordinances establishing standards for non-emergency vegetation management activities. However, the municipality may have to pay for any extra cost the utility incurs in following the ordinance.Scope of Utility Easements

In many instances, power companies have utility easements to maintain their distribution systems. In Gallagher v Grant-Lafayette Electric Cooperative, 249 Wis 2d 115, 637 NW2d 80 (Wis App Ct 2001), the Gallaghers granted Grant-Lafayette a "reasonable right-of-way easement." Grant-Lafayette applied herbicide to trees and brush under their power line on the Gallagher's property. The court of appeals of Wisconsin concluded that Grant-Lafayette's easement included those steps reasonably necessary to keep trees and other vegetation from interfering with the wires. The court cited the importance of "properly and safely maintaining power lines" and "keeping the wires clear of interference."

While the holding of Gallagher appears to give the power companies substantial leeway in tree trimming, the opinion explicitly limits the holdings of other Wisconsin cases. Most importantly, a power company does not have authority to clear its easement of all trees and brush. Furthermore, a court need not defer to the power company's judgment in determining what trimming is necessary. Clearing trees and brush from under the power line must be "reasonably necessary" to the power line's maintenance.

Wisconsin courts have been willing to find vegetation management practices unreasonable. InSharkey v Barron Electric Cooperative, 183 Wis 2d 435, 516 NE2d 22 (Table), 1994 WL 193173 (Wis App Ct 1994), an unpublished opinion with no precedential value, Sharkey granted Barron Electric Cooperative an easement to "cut and trim trees and shrubbery to the extent necessary to keep them clear of [Barron's] electric line or system ... and to cut down from time to time all dead, weak, leaning, or dangerous trees that are tall enough to strike the wires in falling." Barron then trimmed trees on the easement, leaving debris on the easement, and cut and shredded vegetation and trees up to five inches in diameter using a hydro-ax. The court determined that Barron's "hydro-axing procedure was outside the rights granted to it under the easement ...."Sharkey, 183 Wis 2d 435, 516 NE2d 22 (Table), 1994 WL 193173, page 2. Instead, the hydro-axing added a burden to Sharkey's land not authorized by the easement. The court explicitly noted that none of the hydro-axed trees were dead, weak, leaning, or dangerous and that hydro-axing was not necessary to keep the trees and shrubbery clear of the electric lines or system. Thus, the vegetation did not necessitate Barron's hydro-axing. Given the above cases, it appears that Wisconsin courts will limit the scope of the power companies' easements to those vegetation management activities that are necessary to maintain reliable service. Illinois and Indiana courts have not ruled on this issue.

Landowners can also encounter problems with power companies trimming trees along highways. In the construction or maintenance of electric lines along, across, or within the limits of the highway, Wisconsin prohibits cutting or trimming without the consent of the tree's owner. Wis Stat § 86.16. In Indiana, "[t]he utility may trim any tree along the road or highway, but may not cut down and remove the tree without the consent of the abutting property owners, unless the cutting or removal is required by rule or order of the Indiana utility regulatory commission." IC 8-20-1-28.

Damages

When a power company has exceeded the scope of its easement, determining the homeowner's damages may be difficult for courts. In Wisconsin, "the proper measure of damages for the destruction of fruit, ornamental, or shade trees is the replacement value of those trees."Sharkey, 183 Wis 2d 435, 516 NE2d 22 (Table), 1994 WL 193173 (citingOtto v Cornell, 119 Wis 2d 4, 349 NW2d 703 (Wis App Ct 1994)). TheSharkeycourt applied replacement value to wild, natural growth. The court reasoned that the natural growth "existed on Sharkey's land because Sharkey wished them to," and, therefore, replacement value was the appropriate measure of damages.Sharkey, 183 Wis 2d 435, 516 NE2d 22 (Table), 1994 WL 193173. The rationale for using replacement value instead of change in market value is that "[a]n owner of real estate has a right to enjoy it according to his own taste and wishes, ... yet the arrangement ... [of trees] selected by him might be of no considerable enhancement of the sale value of the premises, ... and the disturbance of that arrangement, therefore, might not impair the general market value ...."Id. (internal citations omitted).

Illinois and Wisconsin both award treble damages for wrongly cut trees. 740 ILCS 185/2; Wis Stat § 182.017. However, in Illinois, the treble damages do not apply to a "supplier of electricity ... who may cut, or cause to be cut, any tree or timber which may impair that supplier's ability to provide safe and reliable service." 740 ILCS 185/7. Unlike the amended Public Utilities Act, claims under the Wrongful Tree Cutting Act go before the courts. Wisconsin also prohibits treble damages when the owner has consented or after the right to trim has been acquired. Wis Stat § 182.017. The Wisconsin statute, however, does not explicitly exclude power companies.

Conclusion

Trees near power lines present a ubiquitous problem. However, the depth of statutory and common law on the subject varies substantially from state to state. It is important to note that public outcry over a power company's trimming practices generated new legislation in Illinois. Furthermore, power company materials provide information about appropriate vegetation under power lines. Customers and landowners are not powerless against the utilities.

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