author: LUNDSTEN, J.

text:
    Town of Beloit, Petitioner-Third-Party Defendant-Appellant, v. County of Rock, Respondent-Respondent, v. Belle Zyla, Marvin Prothero, and Green-Rock Audubon Society, Intervenors-Third-Party Plaintiffs-Respondents.

    Court of Appeals

      No. 00-1231.

      Oral argument February 26, 2001.

    Decided October 25, 2001.

    2001 WI App 256
    (Also reported in 637 N.W.2d 71.)

      On behalf of the petitioner-third-party defendant-appellant, the cause was submitted on the briefs of and oral argument by Kenneth W. Forbeck of O'Neal, For-beck, Elliott & Monahan, S.C., Beloit.
    On behalf of the respondent-respondent, the cause was submitted on the briefs of and oral argument by Eugene R. Dumas, Rock County deputy corporation counsel, Janesville.
    On behalf of the intervenors-third-party plaintiffs-respondents, the cause was submitted on the briefs of and oral argument by Joseph R. Cincotta of Schweitzer & Cincotta LLP, Milwaukee.
    Before Vergeront, EJ., Roggensack and Lundsten, JJ.

       Petition to review granted 1-29-02.

   LUNDSTEN, J.

¶ 1. The Town of Beloit commenced this action in the circuit court when it filed a petition for a writ of certiorari complaining that the respondent, County of Rock, lacked authority to impose certain conditions on the Town's proposed subdivision plat. While this certiorari action was pending in the circuit court, Belle Zyla, Marvin Prothero, and the Green-Rock Audubon Society (collectively Intervenors) filed a motion to intervene and a complaint for declaratory judgment on the basis that the Town exceeded its authority in both preparing and approving the subdivision plat and in developing the subdivision without a public purpose. The circuit court denied the Town's motion for summary judgment against the Intervenors and instead issued summary judgment in favor of the Intervenors. For the following reasons, we reverse the decision granting summary judgment in favor of the Intervenors, grant summary judgment against the In-tervenors, and remand for further proceedings.

Background

¶ 2. The parties stipulated to the following facts. The Town currently owns a 20.4 acre parcel of land located in the Town of Beloit, Rock County, along the Rock River. The parcel is known as the "Heron Bay Lands." The Heron Bay Lands have been open to and used by members of the public for recreation.

¶ 3. In 1997, the Town approved a "Master Plan" for the Heron Bay Lands, zoning it for single-family residential housing. At a subsequent Board of Supervisors meeting, the Town authorized and approved the expenditure of Town tax revenues for planning and platting services to develop the land. The Town then authorized an engineering firm to produce a plan to develop the Heron Bay Lands into a thirty-six-lot, single-family residential subdivision and to submit the plan to the State of Wisconsin. The Town also authorized the bidding of contracts necessary for engineering and construction of the infrastructure.

¶ 4. Ultimately, the Town considered and approved a preliminary plat for the subdivision. The preliminary plat was forwarded to Rock County for its review and approval. After Rock County's initial review, the subdivision was reduced from thirty-six lots to twenty-four lots. Rock County then conditionally approved the twenty-four-lot preliminary plat subject to various conditions, including that Rock County retain a 300-foot-wide strip of land commencing on the bank of the Rock River and extending the entire eastern border of the property.

¶ 5. The Town's Planning Commission then took up review of the preliminary plat. There was some discussion during this time regarding the environmental sensitivity of the land and the measures taken to preserve an oak savanna within the Heron Bay Lands. Although the Town's Board of Supervisors ultimately approved the twenty-four-lot preliminary plat, the Town filed a petition for writ of certiorari in May of 1999, seeking to reverse Rock County's conditional approval in some respects.

¶ 6. After the filing of the petition, the Town authorized the expenditure of over $600,000 in Town tax revenues for the development and construction of waste and sewerage piping with the intent that it serve both the future Heron Bay Lands subdivision and over 1500 additional acres of land in the area.

¶ 7. All of the above facts were agreed to by stipulation.

¶ 8. In July of 1999, the Intervenors filed their motion to intervene and a complaint for declaratory judgment. In the complaint, the Intervenors sought a declaration that the Town exceeded its authority by both preparing and approving the subdivision. The Intervenors sought to have the plat declared void and to have the Town enjoined from taking any further action inconsistent with its responsibility to act with a public purpose. The circuit court granted the motion to intervene.

¶ 9. The Town then' filed a motion for summary judgment. In its brief in support of the motion and an attached affidavit, the Town asserted that, prior to hiring its own engineering firm to plat the property, it sought proposals from private builders. However, the Town found all submitted proposals to be unacceptable. Accordingly, the Town argued, it was proper for the Town to develop its own land as a means of increasing the Town's tax base and controlling orderly expansion of the area. Additionally, by creating and enforcing a 300-foot conservation easement along the Rock River, the Town asserted it was acting to protect and preserve an environmentally sensitive area. Finally, the Town alleged that it did not act improperly in reviewing its own subdivision proposal because it complied with all of the requirements of Wis. Stat. ch. 236 by submitting its proposal to all appropriate political bodies.

¶ 10. The Intervenors and Rock County filed briefs in opposition to the Town's motion. The circuit court denied the Town's motion for summary judgment. After concluding as a matter of law that the Town did not act with a public purpose in developing the Heron Bay Lands, the court granted summary judgment in favor of the Intervenors on their complaint for declaratory judgment pursuant to Wis. Stat. § 802.08(6) (1997-98), which allows a court to award summary judgment to an opposing party even if that party has not sought summary judgment. The Town appeals.

Discussion

¶ 11. The issue before this court is whether the circuit court erred when it denied the Town's motion for summary judgment, granted summary judgment in favor of the Intervenors, and enjoined the Town from further acting as a developer of the Heron Bay Lands.

¶ 12. This court reviews summary judgment decisions de novo, applying the same standards as the trial court. Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31 (Ct. App. 1997). A party is entitled to summary judgment when there are no genuine issues of material fact and that party is entitled to judgment as a matter of law. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987).

A. The Town's General Authority to Act as a "Subdivider"

¶ 13. Towns are creatures of the legislature, and thus have only the powers expressly delegated to them by statute and such other powers as are necessary to implement the powers expressly granted. Haug v. Wallace Lake Sanitary Dist., 130 Wis. 2d 347, 351, 387 N.W.2d 133 (Ct. App. 1986). Accordingly, we first turn our attention to an examination of whether the Town of Beloit had statutory authority to develop the Heron Bay Lands.

¶ 14. The Town has adopted what are known as village powers pursuant to Wis. Stat. §§ 60.10(2)(c) and 60.22(3). The Town contends that it has authority to act as a "subdivider" of property pursuant to the general powers granted a village in Wis. Stat. § 61.34(1) and (5). Additionally, the Town asserts that § 61.34(3) specifically grants it the power to sell real estate it owns because that statute says a village may "acquire property, real or personal," and may "sell and convey such property."

¶ 15. Neither the Intervenors nor Rock County disputes that the Town had authority to act as a subdivider under the general powers granted to a village in Wis. Stat. § 61.34(1), (3) and (5). We think this implicit concession is appropriate. Section 61.34(1) states that a village's enumerated powers are limited only by express language. Accordingly, the Town has authority to act as a subdivider for the public benefit under subsections (1), (3) and (5) of § 61.34, so long as it is not specifically prohibited from doing so by some other rule of law.

¶ 16. Still, the Intervenors and Rock County argue that the Town may not assume the dual role of subdivider and reviewer of a proposed plat under Wis. Stat. ch. 236. They also argue that the Town's actions are prohibited by the public purpose doctrine of the state constitution. We now address these arguments.

B. The Town Was Not Prohibited by Wis. Stat. Ch. 236 From Both Proposing and Reviewing the Subdivision Plat

¶ 17. Rock County very generally argues that a town which has adopted local subdivision regulations pursuant to Wis. Stat. § 236.45(1) engages in a conflict of interest by thereafter acting as a real estate developer within its own jurisdiction. Similarly, the Interve-nors suggest that language in Wis. Stat. § 236.13(2)(a) and (c) indicates that a town may not act as both subdivider and the approving authority of a proposed plat because those subsections refer to "subdivider" as a separate entity from either a "governing body" or a "town." However, nothing in Wis. Stat. ch. 236 specifically prohibits a town from subdividing land it owns. As noted, a town's general powers to act for the good order of the town, for its commercial benefit, and for the health, safety, welfare and convenience of the public are to be limited only by express language. Wis. Stat. § 61.34(1).

¶ 18. Moreover, a review of statutory law leads us to conclude that the legislature has considered and approved of municipal bodies acting in the dual role of subdivider and reviewing authority. In an atterhpt to encourage and promote the development of industry, the legislature enacted Wis. Stat. § 66.1101 (1999-2000). Under .§ 66.1101(3) (1999-2000), cities, villages, and towns may develop industrial sites through the installation of utilities and roadways and may sell those sites. These actions necessarily require municipalities to plat property and act as subdividers, thereby subjecting municipalities to the platting procedures of Wis. Stat. ch. 236. Accordingly, we conclude that the legislature envisioned and approved of municipalities acting as both subdivider and approver of a proposed plat.

¶ 19. Finally, affidavits submitted by the Town indicate that it was required to and did submit its plat proposal to not only the Town's Planning Commission, a separate entity from the Town's Board of Supervisors, but also to the State of Wisconsin, the City of Beloit Plan Commission, and the Rock County Planning and Development Agency. Accordingly, we are less concerned here with a possible conflict of interest than we would be if the Town were the sole reviewing body. Indeed, neither the Intervenors nor Rock County suggests that the State of Wisconsin in approving the plat, or the City of Beloit or Rock County in conditionally approving the plat, acted improperly.

C. The Town Acted with a Public Purpose

¶ 20. We now consider whether the Town violated the public purpose doctrine by expending public funds for a private purpose.

¶ 21. Under the public purpose doctrine, public funds may be expended only for public purposes. State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 414, 208 N.W.2d 780 (1973). Although no specific clause in the state constitution establishes the public purpose doctrine, it is a well-established constitutional tenet. State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 47-48, 205 N.W.2d 784 (1973).

¶ 22. What constitutes a public purpose is generally for a legislative body to determine and" 'courts will not interfere unless at first blush the act appears to be so obviously designed in all its principal parts to benefit private persons and so indirectly or remotely to affect the public interest that it constitutes the taking of property of the taxpayers for private use.'" See State ex rel. Bowman v. Barczak, 34 Wis. 2d 57, 64, 148 N.W.2d 683 (1967), quoting State ex rel. Wisconsin Dev. Auth. v. Dammann, 228 Wis. 147, 182, 277 N.W. 278, 280 N.W. 698 (1938).

[The] opinion [of a legislative body] should be given great weight. If any public purpose can be conceived which might rationally justify the expenditure, the constitutional test is satisfied. We will conclude that no public purpose exists only if it is clear and palpable that there can be no benefit to the public.

Bishop v. City of Burlington, 2001 WI App 154, ¶ 11, 246 Wis. 2d 879, 631 N.W.2d 656 (citations omitted).

¶ 23. There is no single test used to determine whether an expenditure of funds is for a public purpose.

The essence of the doctrine, that public funds may be ' expended only for public purposes, rests on the theory that governmental power should be used for the benefit of the entire community. To maintain a public purpose, the benefit to the public must be direct and not remote. The fact that a private entity receives direct benefit from an expenditure of public funds does not render the expenditure unconstitutional. If the principal parts of the expenditure are designed to promote a public purpose, private benefits which are necessary and reasonable to the main purpose are permissible.

Id. at ¶ 10 (citations omitted). Courts have considered whether the subject matter or commodity of the expenditure is one of "public necessity, convenience or welfare," as well as the difficulty private individuals have in providing the benefit for themselves. Hammermill, 58 Wis. 2d at 56 (citation omitted).

¶ 24. With these factors in mind, we turn now to an examination of the facts in this case.

¶ 25. The Town argues that Wis. Stat. § 61.34(3) specifically provides it with the authority to sell property it owns, regardless whether it acts with a public purpose. However, at a minimum, the public purpose doctrine applies whenever a governmental entity expends funds and the "sale" in this case involved significant expenditures by the Town. Furthermore, we agree with the Intervenors and Rock County that the Town is doing more than simply selling its property. Indeed, the Town readily admits it has and will expend significant tax revenues on its efforts to develop the Heron Bay Lands subdivision. Therefore, we now consider whether the Town is acting with a public purpose.

¶ 26. The concept of public purpose is not a static one. The trend by both legislatures and courts has been to extend the concept of public purpose in consideration of "the demands upon municipal governments to provide for the needs of the citizens." Hammermill, 58 Wis. 2d at 55-56. The Town has repeatedly suggested that its development of the Heron Bay Lands will promote orderly development of the area, will increase the tax base, and will likely result in a profit to the Town. These considerations are comparable to those previously found by Wisconsin courts to constitute a public purpose.

¶ 27. For instance, in Alexander v. City of Madison, 2001 WI App 208, ¶¶ 9-10, 247 Wis. 2d 576, 634 N.W.2d 577, a city's expenditure of funds to increase the tax base and generally enhance the economic climate of the community was for a public purpose. In Bishop, 2001 WI App 154 at ¶¶ 21-23, a city acted with a public purpose when it transferred a parking lot to a private developer to promote the rehabilitation of a downtown area, even though the parking lot could be used solely for a single private entity after three years. The supreme court has also determined that attempts to preserve and enhance the tax base of counties, cities, and other local governmental jurisdictions, as well as attempts to bring in capital to the community, are public purposes for the expenditure of public funds. See Hammermill, 58 Wis. 2d at 49-50; Libertarian Party of Wisconsin v. State, 199 Wis. 2d 790, 810, 546 N.W.2d 424 (1996). The fact that private individuals, by purchasing the subdivision plats, will ultimately benefit from the Town's development does not vitiate the public benefits derived from the development itself. See Libertarian Party, 199 Wis. 2d at 810.

¶ 28. Citing Heimerl v. Ozaukee County, 256 Wis. 151, 40 N.W.2d 564 (1949), the Intervenors suggest that the Town may not engage in business in competition with private developers. There is nothing in Heimerl, however, to suggest that municipalities may never engage in traditionally private business in competition with the private sector. Rather, in that case, the court found that no public purpose was satisfied by Ozaukee County's expenditure of public funds to construct private driveways. Id. at 153, 158. The Intervenors do not direct our attention to any authority other than Hei-merl, and we find no statute or case law supporting the Intervenors' contention.

¶ 29. Having determined that the Town's expenditure of tax revenues to develop the Heron Bay Lands serves a public purpose, we reverse the circuit court's grant of summary judgment in favor of the Intervenors and grant the Town's motion for summary judgment. Because the Town's petition for a writ of certiorari is no longer moot, we remand this matter to the circuit court for further proceedings consistent with this opinion.

By the Court. — Order reversed and cause remanded with directions.

       WISCONSIN Stat. § 802.08(6) provides as follows: "If it shall appear to the court that the party against whom a motion for summary judgment is asserted is entitled to a summary judgment, the summary judgment may be awarded to such party even though the party has not moved therefor." All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       WISCONSIN Stat. § 61.34 provides in full:
      (1) GENERAL GRANT. Except as otherwise provided by law, the village board shall have the management and control of the village property, finances, highways, streets, navigable waters, and the public service, and shall have power to act for the government and good order of the village, for its commercial benefit and for the health, safety, welfare and convenience of the public, and may carry its powers into effect by license, regulation, suppression, borrowing, taxation, special assessment, appropriation, fine, imprisonment, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants and shall be limited only by express language.
      (2) COOPERATION WITH OTHER MUNICIPALITIES. The village board, in behalf of the village, may join with other villages or cities in a cooperative arrangement for executing any power or duty in order to attain greater economy or efficiency, including joint employment of appointive officers and employes.
      (3) ACQUISITION AND DISPOSAL OF PROPERTY. The village board may acquire property, real or personal, within or outside the village, for parks, libraries, recreation, beautification, streets, water systems, sewage or waste disposal, harbors, improvement of watercourses, public grounds, vehicle parking areas, and for any other public purpose; may acquire real property within or contiguous to the village, by means other than condemnation, for i industrial sites; may improve and beautify the same; may construct, own, lease and maintain buildings on such property for instruction, recreation, amusement and other public purposes; and may sell and convey such property. Condemnation shall be as provided by ch. 32.
      (3m) ACQUISITION OF EASEMENTS AND PROPERTY RIGHTS. Confirming all powers granted to the village board and in furtherance thereof, the board is expressly authorized to acquire by gift, purchase or condemnation under ch. 32 any and all property rights in lands or waters, including rights of access and use, negative or positive easements, restrictive covenants, covenants running with the land, scenic easements and any rights for use of property of any nature whatsoever, however denominated, which may be lawfully acquired for the benefit of the public or for any public purpose, including the exercise of powers granted under ss. 61.35 and 62.23; and may sell and convey such easements or property rights when no longer needed for public use or protection.
      (4) VILLAGE FINANCES. The village board may levy and provide for the collection of taxes and special assessments; may refund any tax or special assessment paid, or any part thereof, when satisfied that the same was unjust or illegal; and generally may manage the village finances. The village board may loan money to any school district located within the village or within which the village is wholly or partially located in such sums as are needed by such district to meet the immediate expenses of operating the schools thereof, and the board of the district may borrow money from such village accordingly and give its note therefor. No such loan shall be made to extend beyond August 30 next following the making thereof or in an amount exceeding one-half of the estimated receipts for such district as certified by the state superintendent of public instruction and the local school clerk. The rate of interest on any such loan shall be determined by the village board.
      (5) CONSTRUCTION OF POWERS. For the purpose of giving to villages the largest measure of self-government in accordance with the spirit of article XI, section 3, of the constitution it is hereby declared that this chapter shall be liberally construed in favor of the rights, powers and privileges of villages to promote the general welfare, peace, good order and prosperity of such villages and the inhabitants thereof.

       WisConsin Stat. § 236.45(1) states as follows:
      DECLARATION OF LEGISLATIVE INTENT. The purpose of this section is to promote the public health, safety and general welfare of the community and the regulations authorized to be made are designed to lessen congestion in the streets and highways; to further the orderly layout and use of land; to secure safety from fire, panic and other dangers; to provide adequate light and air, including access to sunlight for solar collectors and to wind for wind energy systems; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate adequate provision for transportation, water, sewerage, schools, parks, playgrounds and other public requirements; to facilitate the further resubdivision of larger tracts into smaller parcels of land. The regulations provided for by this section shall be made with reasonable consideration, among other things, of the character of the municipality, town or county with a view of conserving the value of the buildings placed upon land, providing the best possible environment for human habitation, and for encouraging the most appropriate use of land throughout the municipality, town or county.

       WISCONSIN Stat. § 236.13(2) provides in relevant part:
      (a) As a further condition of approval, the governing body of the town or municipality within which the subdivision lies may require that the subdivider make and install any public improvements reasonably necessary or that the subdivider execute a surety bond or provide other security to ensure that he or she will make those improvements within a reasonable time.
      (c) Any county, town, city or village may require as a condition of approval that the subdivider be responsible for the cost of any necessary alterations of any existing utilities which, by virtue of the platting or certified survey map, fall within the public right-of-way.

       WISCONSIN Stat. § 66.1101 (1999-2000) provides in full:
      Promotion of industry; industrial sites. (1) It is declared to be the policy of the state to encourage and promote the development of industry to provide greater employment opportunities and to broaden the state's tax base to relieve the tax burden of residents and home owners. It is recognized that the availability of suitable sites is a prime factor in influencing the location of industry but that existing available sites may be encroached upon by the development of other uses unless protected from encroachment by purchase and reservation. It is further recognized that cities, villages and towns have broad power to act for the commercial benefit and the health, safety and public welfare of the public. However, to implement that power, legislation authorizing borrowing is necessary. It is, therefore, the policy of the state to authorize cities, villages and towns to borrow for the reservation and development of industrial sites, and the expenditure of funds for that purpose is determined to be a public purpose.
      (2) For financing purposes, the purchase, reservation and development of industrial sites undertaken by a city, village or town is a public utility within the meaning of s. 66.0621. In financing under that section, rentals and fees are considered to be revenue. Any indebtedness created under this section shall not be included in arriving at the constitutional debt limitation.

        (3) Sites purchased for industrial development under this section or under any other authority may be developed by the city, village or town by the installation of utilities and roadways but not by the construction of buildings or structures. The sites may he sold or leased for industrial purposes but only for a fair consideration to he determined by the governing body.

       The Town also asserts it has acted with a public purpose in creating a 300-foot-wide conservation easement along the Rock River. While an affidavit submitted by the Town indicates that the Town is in the process of drafting the conservation easement, the Town objected in its petition for a writ of certiorari to Rock County's conditional approval requiring the Town to dedicate the same strip of land as a "park and open space" to Rock County. Because there seems to be a factual dispute regarding whether the Town will voluntarily create such an easement, we decline to consider whether the easement is an additional public purpose.


source: Caselaw Access Project

license: Public Domain

text:
    Monika Gasper, a minor, by her Guardian ad Litem, Mont L. Martin, and Laura Smith, parent and legal guardian, Plaintiffs-Appellants, Health Care Recoveries, Inc., Plaintiff, v. Andrew and Nancy Parbs, husband and wife, and American Family Mutual Insurance Company, Defendants-Respondents.
    Court of Appeals

      No. 00-2476.

      Submitted on briefs May 4, 2001.

    Decided October 25, 2001.

    2001 WI App 259
    (Also reported in 637 N.W.2d 399.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Mont L. Martin of Wiernick, Martin & Neumaier, S.C., Milwaukee.
    On behalf of the defendants-respondents, the cause, was submitted on the brief of Patrick S. Nolan and Aynsley B. Bourne of Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee.

      Before Dykman, Deininger and Lundsten, JJ.
   LUNDSTEN, J.

¶ 1. Monika Gasper, a minor, by her guardian ad litem, Mont Martin, and her parent and legal guardian, Laura Smith, appeals from the judgment and underlying'order denying her motion, after verdict, seeking double damages for injuries Monika sustained when a dog, owned by Andrew and Nancy Parbs, bit her face. Monika relied on Wis. Stat. § 174.02(l)(b) (1991-92), a statute imposing double damages on dog owners who have notice that their dog has previously "injured or caused injury to a person, livestock or property." The trial court determined that awarding Monika double damages under the statute would be an absurd result and denied her motion. For the following reasons, we affirm.

Background

¶ 2. In May of 1993, Nancy Parbs was babysitting Monika and several other children. Nancy was in front of her house with the children when Monika's mother, Laura Smith, arrived to pick up Monika. While Monika and her mother were present, Nancy Parbs released her two-year-old dog from her car and the dog bit Monika's face.

¶ 3. Monika sued the Parbs and their insurer, American Family Mutual Insurance Company, for injuries she sustained when the Parbs' dog bit her. The matter was tried to a jury, which returned a verdict in favor of Monika in the amount of $25,000. During the trial, Nancy Parbs testified that when her dog was less than six months old, he chewed on and damaged some Tupperware containers and also chewed on and damaged approximately five legs of two kitchen chairs.

¶ 4. After the trial, Monika filed a motion requesting double damages pursuant to Wis. Stat. § 174.02(l)(b). At a hearing on the motion, the trial court concluded that the application of the literal words of the statute to this case would produce an absurd result. More specifically, the court determined that a dog owner does not have notice that his or her dog is likely to injure a person because the dog chewed on furniture or Tupperware when it was a puppy. Accordingly, the court denied Monika's motion for double damages, judgment was entered, and she appealed.

Discussion

¶ 5. The sole issue we must decide is whether the trial court erred when it denied Monika's motion to award double damages.

¶ 6. Monika argues that the plain language of Wis. Stat. § 174.02(l)(b) requires an award of double damages in this case. Section 174.02(l)(b) authorizes double damages "if the owner was notified or knew that the dog previously injured or caused injury to a person, livestock or property." Monika asserts there is no dispute that Nancy Parbs knew her dog "previously . . . caused injury to ... property" by chewing on and damaging Tupperware and chair legs.

¶ 7. The Parbs respond that Wis. Stat. § 174.02(l)(b) should be construed to provide for double damages only when the prior conduct and the conduct at issue are similar. For instance, if a dog previously injures property, reasonable notice exists to award double damages when the dog subsequently injures property. The Parbs also argue that a literal application of the statute to the facts of this case leads to an absurd result and is contrary to sound public policy.

¶ 8. This case requires us to construe Wis. Stat. § 174.02(l)(b) and apply it to undisputed facts. We do this de novo. Barry v. Maple Bluff Country Club, Inc., 2001 WI App 108, ¶ 6, 244 Wis. 2d 86, 629 N.W.2d 24. The guiding principle in statutory construction is to discern legislative intent. State v. Irish, 210 Wis. 2d 107, 110, 565 N.W.2d 161 (Ct. App. 1997). The first step in construing a statute is to look to the language of the statute itself and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986). If the language of the statute is clear and unambiguous, we normally apply it to the facts at hand without further analysis. See Turner v. Gene Dencker Buick-Pontiac, Inc., 2001 WI App 28, ¶ 14, 240 Wis. 2d 385, 623 N.W.2d 151. However, the plain language of a statute should not be construed in a manner that leads to absurd or unreasonable results. State v. Yellow Freight Sys., Inc., 101 Wis. 2d 142, 153, 303 N.W.2d 834 (1981). We presume that "the legislature intends for a statute to be interpreted in a manner that advances the purposes of the statute." Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 635, 547 N.W.2d 602 (1996).

¶ 9. Wisconsin Stat. § 174.02(l)(b) provides double damages when the owner of an injury-causing dog was "notified or knew that the dog previously injured or caused injury to a person, livestock or property." This language is plain and unambiguous. If construed literally, it imposes double damages on the owner of an injury-causing dog whenever the owner has notice that his or her dog has previously caused any injury to a person, livestock or property. We conclude, however, that this literal interpretation would lead to an absurd result if applied to impose double damages in this case.

¶ 10. We agree with the trial court that virtually all puppies chew on various items they encounter, including shoes, toys, bones, newspapers, plastic containers, and furniture. If the statute were routinely applied in the manner suggested by Monika, damages would be doubled in nearly every case in which a dog injures or causes injury. We do not believe the legislature intended this result.

¶ 11. In Sprague v. Sprague, 132 Wis. 2d 68, 72, 389 N.W.2d 823 (Ct. App. 1986), the court observed that the purpose of the double damages provision in Wis. Stat. § 174.02(l)(b) is to "punish those who harbor or keep a dog with a known propensity for unprovoked assaults and to deter others from doing the same." This purpose is not attained by holding nearly every injury-causing dog owner responsible for a double-damages award because the dog was once a puppy that damaged property while teething. The spirit and intention of a statute should govern over its literal meaning. Id.

¶ 12. Accordingly, we hold that a dog owner does not have notice within the meaning of Wis. Stat. § 174.02(l)(b) simply because the owner knows that the dog, as a puppy, chewed on household items. We do not hold that the acts of a puppy will never give a dog owner notice within the meaning of § 174.02(l)(b), only that the sort of normal teething behavior involved in this case does not give such notice.

¶ 13. In so holding, we reject the Parbs' invitation to construe Wis. Stat. § 174.02(l)(b) to provide for double damages only when the prior injury is to the same statutory category of person, livestock, or property as the subsequent injury. Nothing in the plain language of the statute suggests such an interpretation. Moreover, this construction is contrary to the supreme court's decision in Campenni v. Walrath, 180 Wis. 2d 548, 509 N.W.2d 725 (1994). In that case, the Walraths' dog bit the Campennis' dog, which the supreme court determined was "property" under the statute. Id. at 560. In a subsequent incident, Mrs. Campenni was personally injured attempting to defend her dog from the Walraths' dog. Despite the fact that the first injury was to "property" and the second was to "a person," the supreme court awarded the Campennis double damages for the second incident. Id. at 560a.

¶ 14. We affirm the trial court's judgment and underlying order denying Monika's motion for double damages.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 1991-92 version unless otherwise noted.

       The parties do not contest this procedure.

       Although Wis. Stat. § 174.02(1) has subsequently undergone revision, the pertinent language quoted above remains the same. At the time of Monika's injury, § 174.02(1) provided as follows:
      LIABILITY FOR INJURY, (a) Without notice. Subject to s. 895.045 [pertaining to contributory negligence], the owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person, livestock or property.
      (b) After notice. Subject to s. 895.045, the owner of a dog is liable for 2 times the full amount of damages caused by the dog injuring or causing injury to a person, livestock or property if the owner was notified or knew that the dog previously injured or caused injury to a person, livestock or property.


author: VERGERONT, PJ.

text:
    James M. Gallagher and Patricia A. Gallagher, Plaintiffs-Appellants, v. Grant-Lafayette Electric Cooperative n/k/a Scenic Rivers Energy Cooperative, and Federated Rural Electric Insurance Corporation, Defendants-Respondents.
    Court of Appeals

      No. 01-0233.

      Submitted on briefs July 9, 2001.

    Decided October 25, 2001.

    2001 WI App 276
    (Also reported in 637 N.W.2d 80.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Frank M. Tuerkheimer and James A. Friedman of LaFollette Godfrey & Kahn of Madison.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Denis R. Vogel of Wheeler, Van Sickle & Anderson, S.C. of Madison.
    Before Vergeront, PJ., Roggensack and Deininger, JJ.
   VERGERONT, PJ.

¶ 1. James and Patricia Gallagher appeal the trial court order dismissing their claims of trespass and negligence against Grant-Lafayette Electric Cooperative. Their claims arose out of the Cooperative's use of a herbicide to clear trees and brush under its electric power line on the Gallagh-ers' property. We conclude the Cooperative's right-of-way easement included those steps reasonably necessary to maintain its power line and that the trial court erred in not correctly applying this standard in granting certain of the Cooperative's motions to exclude evidence. We also conclude that the trial court erred in deciding that damages for discomfort and annoyance are not available in an action for trespass. Accordingly, we reverse and remand as more specifically explained below.

BACKGROUND

¶ 2. The Gallaghers maintain a dairy operation on a 135-acre farm in Darlington, Wisconsin. The Cooperative provided electric power to the Gallaghers through a power line, part of which runs along a tree line on the western border of the Gallaghers' property, and part of which runs along a tree line on the northern border. In applications for membership in the Cooperative, the Gallaghers granted the Cooperative "a reasonable right[-]of[-]way easement." For purposes of this appeal, it is not disputed that in May 1996, Cooperative employees, using backpack sprayers, applied the chemical "Spike™" to trees and brush underneath the Cooperative's power line on the Gallaghers' property.

¶ 3. The Gallaghers' amended complaint alleged that the Cooperative entered their property without permission and applied the herbicide contrary to their explicit request. The complaint alleged the herbicide killed 130 trees, which served as a windbreak and source of shade for the cattle and added beauty to the property, other plants under the Cooperative's power line, and an adjacent clover field; and it also caused the death of five dairy cows that grazed on the area sprayed. The amended complaint asserted claims of negligence and intentional and negligent trespass, and sought compensatory and punitive damages.

¶ 4. The Cooperative's answer admitted that it had entered the Gallaghers' property and applied a herbicide under its power line to control trees and brush, but denied entering the property without their consent, and denied that the Gallaghers had asked it not to spray herbicides on their trees. As an affirmative defense, the Cooperative asserted that it had a right to be on the premises and to remove trees and other vegetation under its power line.

¶ 5. The court's scheduling order set a jury trial for November 17,1999, with dispositive motions due by August 16,1999. Neither party filed dispositive motions by that date. On November 1, 1999, the parties each filed trial briefs and motions in limine pursuant to the scheduling order. Among other motions, the Cooperative sought to exclude evidence of trespass, evidence of damages within the right-of-way, and testimony regarding any "requirement" that it seek the Gallaghers' permission to apply a chemical to the right-of-way. The Cooperative's position was that it had a right-of-way on the Gallaghers' property based on eminent domain; it therefore had the right to act reasonably to maintain its right-of-way without the Gallaghers' consent and it had acted reasonably. One of the Gallaghers' motions in limine asked the court to exclude testimony of the Cooperative's expert witnesses that the Cooperative had the right to apply a herbicide or otherwise destroy the trees because, the Gallaghers asserted, the issue of the Cooperative's right was a legal one for the court to decide and not the proper subject of expert testimony.

¶ 6. On November 8, 1999, two days before the pretrial conference, the Cooperative filed a document entitled "Defendant's Reply Brief to Plaintiffs' Trial Brief and Defendant's Motion for Partial Summary Judgment Based Upon the Position Taken by Plaintiffs." In the motion for partial summary judgment, the Cooperative asked the court to rule as a matter of law that the Cooperative had a right to maintain its power line and that no trespass occurred with respect to the maintenance within the right-of-way. The Cooperative also filed various factual submissions, some of which addressed the Gallaghers' motions in limine and some of which addressed the reasonableness of the Cooperative's conduct.

¶ 7. At the pretrial conference, in the course of deciding the parties' motions in limine, the court ruled that the Cooperative had the right to keep its easement clear of trees and brush by using herbicides even if the Gallaghers did not consent. It therefore granted the Cooperative's motion to exclude evidence of trespass, damages within the right-of-way, and the need for the Gallaghers' consent. This ruling made the Gallaghers' motion to exclude expert testimony on the Cooperative's right to apply herbicides or otherwise destroy the trees moot, since all the trees destroyed were within the right-of-way. The court also ruled that damages for annoyance and inconvenience were not available in the absence of a nuisance claim, which the Gallaghers were not asserting; and it ruled that the Gallaghers were not entitled to punitive damages for damages occurring outside the right-of-way if treble damages were available under Wis. Stat. § 182.017(5) (1999-2000).

¶ 8. Subsequently the parties agreed that the court's rulings on the motions in limine were tantamount to dismissal of the Gallaghers' claims for damages within the right-of-way, and they therefore stipulated to the entry of an order dismissing those claims with prejudice. They also stipulated to dismissal of the Gallaghers' claims for damages outside the right-of-way without prejudice, agreeing that if an appellate court reversed the trial court's order on the claims for damages within the right-of-way and remanded, the Gal-laghers could re-file their claims for damages outside the right-of-way; but if the appellate court affirmed the order regarding damages within the right-of-way, those claims outside the right-of-way would be dismissed with prejudice.

¶ 9. The Gallaghers appealed the order dismissing their claims for damages within the right-of-way. We dismissed that appeal, concluding that Cascade Mountain, Inc. v. Capitol Indem. Corp., 212 Wis. 2d 265, 569 N.W.2d 45 (Ct. App. 1997), applied. We held in Cascade Mountain that a party could not, by stipulating to the entry of a conditional judgment, obtain a mandatory appeal of an interlocutory order. Id. at 269.

¶ 10. Following the dismissal of that appeal, the Gallaghers moved the trial court to dismiss with prejudice the claims for damages outside the right-of-way. The court granted the motion and entered an order dismissing those claims with prejudice.

DISCUSSION

¶ 11. On this appeal, the Gallaghers assert the trial court erred in concluding that the Cooperative had a right to destroy with herbicides the trees and other vegetation within its right-of-way without the Gallagh-ers' consent. They also contend they are entitled to damages for discomfort and annoyance on their trespass claim, and to either treble damages under Wis. Stat. § 182.017(5) or punitive damages for the destruction of the trees and plants within the right-of-way. Before addressing these issues, we address the Cooperative's argument that we must dismiss this appeal for the same reason we dismissed the prior appeal. We conclude that neither the dismissal of the prior appeal nor Cascade Mountain precludes the Gallaghers from pursuing this appeal.

¶ 12. We dismissed the prior appeal because the Gallaghers had consented to a dismissal without prejudice of the claims for damages outside the right-of-way, with the condition that they could reinstate those claims if we reversed the trial court's decisions with respect to the claims for damages within the right-of-way. Applying Cascade Mountain, we concluded the order resulting from their conditional stipulation was not a final order within the meaning of Wis. Stat. § 808.03(1). In contrast, the order the Gallaghers now appeal is final because it dismisses the claims for damages outside the right-of-way with prejudice, and there is no stipulation permitting the Gallaghers to reinstate these claims. An appeal of that final order brings before this court all prior non-final orders and all rulings adverse to the Gallaghers that have not been previously appealed and ruled upon. Wis. Stat. Rule 809.10(4). Therefore, the Gallaghers have the right on this appeal to challenge the rulings the trial court made before dismissing their claims for damages within the right-of-way.

Scope of Cooperative's Easement

¶ 13. Turning now to the Gallaghers' claims of error, we consider first the trial court's ruling that the Cooperative had the right to destroy the trees and other vegetation within its right-of-way by a herbicide without the Gallaghers' consent. The Gallaghers argue that we should review this ruling de novo, and conclude that the Cooperative's easement gave it the right to cut and trim trees and brush within the right-of-way as reasonably necessary to prevent interference with the power line, but not the right to destroy all vegetation within the right-of-way. Therefore, the Gallaghers continue, the Cooperative could use herbicides to destroy that vegetation only if the Gallaghers consented, and that, they say, presents a factual dispute which requires a jury trial.

¶ 14. The Cooperative responds that it has the right, by virtue of its easement, to take the steps reasonably necessary to maintain its power line and that may include using herbicides without the Gallagh-ers' consent. The Cooperative urges that we review the trial court's decision as one granting a motion for summary judgment and conclude that the undisputed facts are that its use of a herbicide within the right-of-way was reasonably necessary.

¶ 15. In spite of their differing frameworks, both parties agree that we must decide whether the trial court used the correct legal standard in ruling that the Cooperative's easement gave it the right to apply herbicides within its right-of-way to destroy trees and other vegetation. Whether the trial court applied the correct legal standard is a question of law, which we review de novo. Carney v. Mantuano, 204 Wis. 2d 527, 532, 554 N.W.2d 854 (Ct. App. 1996).

¶ 16. An easement is an interest in land which is in the possession of another, creating two distinct property interests: the dominant estate, which enjoys the privileges granted by the easement, and the servient estate, which permits the exercise of those privileges. Atkinson v. Mentzel, 211 Wis. 2d 628, 637, 566 N.W.2d 158 (Ct. App. 1997). An easement may be created in a number of ways, including by a written grant, by prescription— adverse use of another's property that meets certain criteria — and by condemnation by entities that have the power to condemn under Wis. Stat. § 32.02. In this case, the parties appear to disagree on how the Cooperative's easement was created, as well as on the scope of the easement. The Gallaghers classify the easement as a prescriptive easement and appear to question whether the membership agreement grants an easement, but they do not explain why it does not. The Cooperative does view the membership agreement as granting it an easement, but also argues that it has an easement pursuant to its condemnation authority.

¶ 17. We agree with the Cooperative that the only reasonable interpretation of the membership agreement is that it grants the Cooperative a right-of-way easement and that at least one purpose of the easement is for the placement and maintenance of power lines. Since the membership agreement does not provide any detail on the scope of the easement, we apply the principle that every easement carries with it by implication the right to do what is reasonably necessary for the full enjoyment of the easement in light of the purpose for which it was granted. Atkinson, 211 Wis. 2d at 640. Applying that principle, we conclude that the Cooperative's easement includes the right to take those steps that are reasonably necessary to maintain its power line on the Gallaghers' property.

¶ 18. The courts have recognized that properly and safely maintaining power lines involves keeping the wires clear of interference, in the context of an easement acquired by condemnation. In Blair v. Milwaukee Elec. Ry. & Light Co., 187 Wis. 552, 556-57, 203 N.W. 912 (1925), the court held that when an electric company has a right-of-way, it has the right to make a reasonable clearance for its wires by cutting down and trimming trees. "To hold otherwise," the court noted, "would be to jeopardize the efficient operation of the line and perhaps to subject to greater peril the public or those who may have occasion to be on or near the wires, for it is a well known fact that, especially in wet weather, trees touching high-voltage electric wires transmit the current to the ground, where it may do damage to persons or property." Id.; see also Klump v. Cybulski, 274 Wis. 604, 613-14, 81 N.W.2d 42 (1957) (holding the easement a power company acquires by condemnation may include the right to cut down trees to provide sufficient clearance for its wires). The reasoning of these cases leads us to conclude that the Cooperative's right to take the steps reasonably necessary to maintain its power line on the Gallaghers' property includes steps reasonably necessary to keep trees and other vegetation from interfering with the wires.

¶ 19. To the extent the Cooperative is arguing that it is always, as a matter of law, reasonably necessary for a power company to clear all the trees and vegetation from its right-of-way in order to maintain its power line and prevent interference with the wires, we disagree. The Cooperative relies on Peterson v. Lake Superior Dist. Power Co., 255 Wis. 584, 39 N.W.2d 706 (1949). There the court held that an action for trespass lay against the power company for clearing land, by cutting brush and trees, beyond the original area consented to, but not for clearing land by cutting within the original area. Id. at 587. According to the Cooperative, Peterson means that it has the right to completely clear all the trees and brush within its right-of-way. However, in Peterson the easement was created by "permission or tacit consent," and the court did not address whether that permission or tacit consent included the right to clear the original area. Since we are unable to tell from the decision whether it did or did not, we decline to read Peterson as authority for the Cooperative to clear its right-of-way of all trees and brush regardless of whether that is reasonably necessary for the purpose of its easement.

¶ 20. Similarly, if the Cooperative is arguing that courts are to defer to the judgment of a power company as to what is reasonably necessary to maintain its power lines and prevent interference with the wires, we do not agree the law requires that. When the court in Klump stated, "A court will not interfere with the choice unless necessary to prevent an abuse of discretion . ..," it was referring to the choice of where to locate the power lines and to the case law requiring deference to that choice because of the statute giving the power company, as petitioner in the condemnation proceeding, the right to determine the necessity of the taking. Klump, 274 Wis. at 612. We do not read Klump to require that we apply a more deferential standard than "reasonably necessary" to the Cooperative's decision to use a herbicide to clear trees and brush from under its power line.

¶ 21. As we have already noted, the Gallaghers acknowledge that the Cooperative's easement permits it to cut and trim trees and other vegetation within the right-of-way as reasonably necessary to prevent interference with the power line; but, they contend, it is not reasonably necessary, as a matter of law, to use a herbicide to clear all the trees and other vegetation within the right-of-way — in other words, the Cooperative may not do so without their consent. They rely on cases from other jurisdictions, but none, we conclude, support their position. In the cases holding that a power company's cutting down trees exceeded its authority, the fact finder had determined that removal was not necessary, Segraves v. Consolidated Elec. Coop., 891 S.W.2d 168, 171-72 (Mo. Ct. App. 1995), or was not reasonably necessary. Lamar County Elec. Coop. Ass'n v. Bryant, 770 S.W.2d 921, 923 (Tex. App. 1989). In the cases holding that use of herbicides was not permitted, the courts were interpreting specific language in written grants of easement: Kell v. Appalachian Power Co., 289 S.E.2d 450, 456 (W Va. 1982) (also focusing on the danger of drift in the aerial application of herbicide); Stirling v. Dixie Elec. Membership Corp., 344 So. 2d 427, 429 (La. Ct. App. 1977) (also stating that application of the herbicide applied by means other than a helicopter and on a more selective basis might have been permitted by the language); Dwiggins v. Propst Helicopters, Inc., 832 S.W.2d 840, 843 (Ark. 1992); Grimm v. Cooperative Elec. Power & Light Co., 272 P.2d 1052, 1053-54 (Kan. 1954).

¶ 22. None of the cases cited by the Gallaghers suggest that the use of a herbicide that is not aerially applied, but is applied to clear all the trees and other vegetation from the right-of-way, is never reasonably necessary to maintain a power line and prevent interference with the wires. We conclude that whether the Cooperative's application of the herbicide was reasonably necessary for that purpose depends upon the particular facts and circumstances of this case.

¶ 23. It appears the trial court did not apply this standard, but instead concluded that the Cooperative could use a herbicide to clear all the trees and other vegetation within its right-of-way even if that were not reasonably necessary to maintain its power line and prevent interference with the wires. Based on this conclusion, the trial court excluded evidence of tres-, pass, of damages within the right-of-way, and of the need for the Gallaghers' consent to apply a herbicide to the right-of-way. Although the decision whether to exclude evidence involves the exercise of discretion, Henning v. Ahearn, 230 Wis. 2d 149, 178, 601 N.W.2d 14 (Ct. App. 1999), if the exercise of discretion is based on an incorrect legal standard, it is an erroneous exercise of discretion. King v. King, 224 Wis. 2d 235, 248, 590 N.W.2d 480 (1999).

¶ 24. Whether the Cooperative committed trespass depends on whether it exceeded the scope of its easement, see Peterson, 255 Wis. at 587, and, in this case, that requires a factual determination of whether the Cooperative's conduct was reasonably necessary to maintain its power line. Therefore, the court erroneously exercised its discretion in excluding evidence of trespass at trial. The same is true of evidence of damages within the right-of-way.

¶ 25. We do not agree with the Cooperative's position that we should apply the correct legal standard to the submissions before the trial court at the pretrial conference and affirm using summary judgment methodology. The Cooperative's "motion for partial summary judgment" was not filed within the time set by the scheduling order and did not comply with the notice requirements for summary judgment motions. The record does not support the Cooperative's assertion that the Gallaghers acquiesced to the court deciding a motion for partial summary judgment. The Gallaghers' counsel did not agree at the pretrial conference that consideration of the Cooperative's motion for partial summary judgment was proper, but asserted instead that that the issue the Cooperative wanted to raise in that motion was more appropriately addressed in the motions in limine, and the court proceeded to decide those motions. The affidavits and deposition transcripts the Gallaghers had submitted before the pretrial were in support of their motions in limine and included deposition transcripts showing the testimony they wanted excluded; thus, at the pretrial conference the court did not have before it affidavits or other factual materials from the Gallaghers that disputed the Cooperative's factual premises for partial summary judgment. Contrary to the Cooperative's assertion, it was not incumbent upon the Gallaghers to submit such materials before or at the pretrial in opposition to a motion that was untimely and lacked the statutory notice, unless either the Gallaghers agreed or the court so ordered — neither of which occurred.

¶ 26. Because the court erroneously excluded evidence of trespass and damages within the right-of-way, and that exclusion was the basis for the dismissal of the Gallaghers' claims for damages within the right-of-way, we are satisfied that the proper course is to reverse the dismissal of those claims and remand for trial on the Gallaghers' claims for trespass and negligence, which will include a trial on the issue of whether the Cooperative's use of a herbicide was reasonably necessary to maintain its power line. On remand, the court shall reconsider in light of our decision the Cooperative's motion to exclude evidence of the need for the Gallaghers' consent, and any other motions in limine that are affected by our decision on the legal standard for determining the scope of the Cooperative's easement.

Damages for Discomfort and Annoyance

¶ 27. The Gallaghers contend the trial court erred in ruling that they could not recover damages for discomfort and annoyance because they did not plead a nuisance claim. They assert that they may recover these damages on their trespass claims, relying on Restatement (Second) of Torts § 929(1) (1979):

§ 929. Harm to Land from Past Invasions.
(1) If one is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction of value, the damages include compensation for
(a) the difference between the value of the land before the harm and the value after the harm, or at his election in an appropriate case, the cost of restoration that has been or may be reasonably incurred,
(b) the loss of use of the land, and
(c) discomfort and annoyance to him as an occupant.

¶ 28. The Gallaghers acknowledge that the only Wisconsin cases that have expressly allowed damages for discomfort and annoyance have been actions for nuisance. Vogel v. Grant-Lafayette Elec. Coop., 201 Wis. 2d 416, 434, 548 N.W.2d 829 (1996); Andersen v. Village of Little Chute, 201 Wis. 2d 467, 481-83, 549 N.W.2d 737 (Ct. App. 1996). However, they argue that nothing in those cases suggests those damages are not available in trespass cases. They also point out that in Threlfall v. Town of Muscoda, 190 Wis. 2d 121, 135-36, 527 N.W.2d 367 (Ct. App. 1994), we allowed damages for restoration costs in a trespass action, specifically noting that this was consistent with Restatement (Second) of Torts § 929(1)(a). The Gallaghers contend there is no reason to apply one subsection of § 929(1) to a trespass action but not another.

¶ 29. We agree with the Gallaghers that nothing in either Vogel or Andersen suggests a reason not to allow damages for discomfort and annoyance in a trespass action. Neither does Threlfall. Indeed, our reasoning in Threlfall for allowing damages for restoration in a trespass action provides a solid rationale for applying Restatement (Second) of Torts § 929(1)(c) as well as subsection (a) in trespass actions. Citing the prior case of Gilman v. Brown, 115 Wis. 1, 7, 91 N.W. 227 (1902), we stated that "[bjecause recovery in trespass is based on a wrongful invasion of a plaintiffs rights, the rule of damages adopted should more carefully guard against failure to compensate the injured party than against possible overcharge to the wrongdoer," Threlfall, 190 Wis. 2d at 133, and we noted the importance of being able to enjoy the real estate one owns. Id. at 135.

¶ 30. The Cooperative's objections do not provide a reasoned basis for distinguishing between nuisance and trespass actions with respect to the application of Restatement (Second) of Torts § 929(l)(c). First, the Cooperative argues there has been no trespass. However, we have held that issue must be tried: the Cooperative's belief that the Gallaghers will not succeed in proving trespass is not a reason not to allow damages for discomfort and annoyance if they do succeed. Second, citing Kleinke v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138, 549 N.W.2d 714 (1996), the Cooperative argues that damages may not be awarded for emotional distress based on property damage alone. However, Kleinke is inapposite. Kleinke involved a claim for negligent infliction of emotional distress arising out of negligent damage to property, and the court held that public policy grounds precluded recovering for emotional distress in that situation. Id. at 145-46. We are not here concerned with a claim for negligent infliction of emotional distress, but with a claim for trespass, and the question is: why should damages for discomfort and annoyance to the occupant of land be available when past invasion causing harm to the land constitutes a nuisance, but not when past invasion causing harm to the land constitutes a trespass?

¶ 31. The claim of trespass in this case involves a past invasion and harm of the Gallaghers' land. There is nothing in the wording of Restatement (Second) of Torts § 929 that suggests that it applies to claims for nuisance and not to claims for trespass. Nor do the comments indicate that § 929 is restricted to nuisance claims. The comments to subsection (l)(a) and (2) specifically refer to trespass, and, although the comment to subsection (l)(c) does not specifically refer to trespass, it is consistent with trespass claims as well as nuisance claims. We also observe that a number of jurisdictions, either based on their own common law or on § 929(l)(c), have recognized that damages for discomfort and annoyance are available in actions for trespass. We have found no case, and the Cooperative has provided us with none, in which a court in another jurisdiction has refused to apply § 929(l)(c) because the claim is trespass rather than nuisance.

¶ 32. Accordingly, we adopt Restatement (Second) of Torts § 929(1) (c) as a correct statement of damages available in trespass cases that meet the requirements of § 929(1). We conclude that the trial court's ruling excluding evidence of discomfort and annoyance because the Gallaghers had not pleaded a nuisance claim was based on an incorrect legal standard and must be reversed. We do not decide what evidence is admissible to prove discomfort and annoyance; that is an issue the trial court may consider on remand.

Damages under Wis. Stat. § 182.017(5)

¶ 33. The trial court did not decide whether treble damages are available to the Gallaghers under Wis. Stat. § 182.017(5) for damages within the right-of-way because of the incorrect legal standard it applied to determine the scope of the Cooperative's easement. On appeal, the Gallaghers note that they have dismissed with prejudice their claims for damages outside the right-of-way and they ask us to rule either that: (1) treble damages under the statute are available for their losses within the right-of-way; or (2) if treble damages are not available, then punitive damages are. The Cooperative responds that we should not decide whether the statute applies to losses within the right-of-way because the trial court did not address that issue and the trial court will need to make factual determinations before the question of the statute's applicability within the right-of-way can be resolved. The Gallaghers do not reply to this assertion in their reply brief, or make any argument with respect to § 182.017(5) in that brief. We therefore take this as a concession that we should not decide the applicability of § 182.017(5). See Schlieper v. DNA, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994).

CONCLUSION

¶ 34. We hold that the Cooperative's easement includes the right to take those steps reasonably necessary to maintain its power line, which includes the right to take those steps reasonably necessary to prevent interference with the wires. Accordingly, its use of a herbicide to clear all the trees and vegetation from under the power line was within the scope of its easement only if it met this standard. Because the trial court applied an incorrect legal standard in excluding evidence on trespass, on damages within the right-of-way, and on the need for the Gallaghers' consent, we reverse those rulings and the dismissal of the claims for damages within the right-of-way. We remand for a trial on those claims at which the scope of the Cooperative's easement will be determined according to the standard we have set forth above. Evidence of trespass and damages within the right-of-way is admissible at trial. The court shall reconsider its ruling on the Cooperative's motion to exclude evidence of the need for the Gallaghers' consent in light of our holding on the scope of the Cooperative's easement, and shall reconsider as well any other ruling on either parties' motions in limine that is affected by this holding.

¶ 35. We also hold that damages in a trespass action may include compensation for discomfort and annoyance as provided in Restatement (Second) of Torts § 929(l)(c). On remand, the trial court shall reconsider the Cooperative's motion in limine regarding damages for trespass in light of this holding.

By the Court. — Order reversed and cause remanded with directions.

       Grant-Lafayette Electric Cooperative is now known as Scenic Rivers Energy Cooperative.

       The parties appear to agree that the chemical at issue here, "Spike™" may be called either a herbicide or a pesticide. We will use the term "herbicide" throughout.

       One application was signed by James and Patricia in 1976 and one was signed by James in 1989.

       WISCONSIN Stat. § 182.017(5) provides:
      (5) Tree trimming. Any such corporation which shall in any manner destroy, trim or injure any shade or ornamental trees along any such lines or systems, or, in the course of tree trimming or removal, cause any damage to buildings, fences, crops, livestock or other property, except by the consent of the owner, or after the right so to do has been acquired, shall he liable to the person aggrieved in 3 times the actual damage sustained, besides costs.
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

        Stoesser v. Shore Drive P'ship, 172 Wis. 2d 660, 666 n.3, 494 N.W.2d 204 (1993).

        Ludke v. Egan, 87 Wis. 2d 221, 230, 274 N.W.2d 641 (1979).

        See Klump v. Cybulski, 274 Wis. 604, 613, 81 N.W.2d 42 (1957) (discussing a power company's acquisition of an easement by condemnation).

       The parties do not dispute the location or dimensions of the Cooperative's right-of-way easement.

       The Gallaghers object to the Cooperative's condemnation argument because the Cooperative did not plead it as an affirmative defense, it was first raised in the Cooperative's trial brief, and the trial court did not rule on it.

       Because we conclude the membership agreement created an easement and because the parties do not explain how the manner in which the easement was created affects our analysis of the scope of the easement in this case, we do not decide whether an easement was created under the parties' other theories.

       The Gallaghers also cite Boss v. Rockland Elec. Co., 468 A.2d 1055, 1057-58, 1060, (N.J. 1983). There the court interpreted the language in the grant of easement ("the right to cut and keep cut the trees shrubbery and underbrush, as may be necessary . ..") to include "selective removal" — removal of any tree in the right-of-way that had the capacity to grow to the height of the wires. However, the court did not hold that the language did not permit anything more than selective removal.

       The methodology of the trial court and this court on a motion for summary judgment is the same. We first examine the complaint to determine whether it states a claim, and then the answer to determine whether it presents a material issue of fact. Brownelli v. McCaughtry, 182 Wis. 2d 367, 372, 514 N.W.2d 48 (Ct. App. 1994). If they do, we then examine the moving party's affidavits to determine whether that party has made a prima facie case for summary judgment. Id. If it has, we then look to the opposing party's affidavits to determine whether there are any material facts in dispute which entitle the opposing party to a trial. Id. at 372-73.

       WISCONSIN Stat. § 802.08(2) provides in part:
      Motion. Unless earlier times are specified in the scheduling order, the motion shall be served at least 20 days before the time fixed for the hearing and the adverse party shall serve opposing affidavits, if any, at least 5 days before the time fixed for the hearing.

       The fact that the Gallaghers later stipulated that the court's ruling on certain of the motions in limine were "tantamount to a dismissal of [their] claims for damages within the right-of-way" does not mean the Gallaghers consented to the court's consideration of the Cooperative's submissions on issues of fact raised in its motion for partial summary judgment.

       For these same reasons, even if the trial court did apply the correct "reasonably necessary" standard and decided that there were no undisputed facts based on the record before it, we would reverse and remand, because the Gallaghers did not have an opportunity to submit factual materials showing that the Cooperative's application of the herbicide was not reasonably necessary.

       The Gallaghers inform us in their brief that the issue with respect to negligence is essentially the same as that for trespass — whether the Cooperative had a legal right to do what it did.

       The Gallaghers also refer to their negligence claim in this argument section, but they develop an argument only with respect to trespass. Therefore, we confine our discussion and holding to trespass claims. See Fritz v. McGrath, 146 Wis. 2d 681, 686, 431 N.W.2d 751 (Ct. App. 1988) (we do not consider arguments broadly stated but never specifically argued).

       The court in Vogel v. Grant-Lafayette Elec. Coop., 201 Wis. 2d 416, 434, 548 N.W.2d 829 (1996), uses the term "annoyance and inconvenience," as did the trial court in this case. For purposes of this appeal, we attach no significance to the difference between "annoyance and inconvenience" and "discomfort and annoyance."

       Restatement (Second) of ToRts § 929 cmts. a and b (1979) provide in part:
      a.In some cases the measure of recovery may include an amount for depreciation in market value although there has been no substantial physical harm, as when a test well is bored by a trespasser and proved to be dry, and as a result the land loses its value as an oil prospect.
      b.If, however, the cost of replacing the land in its original condition is disproportionate to the diminution in the value of the land caused by the trespass .... (Emphasis added.)

       Restatement (Second) of Torts § 929 cmt. g provides:
      g. Severance... . An innocent trespasser is entitled to the diminution of the damages to the extent that his labor or expenses added to the value of the things severed when suit has been brought for their value. This distinction between the innocent and the wilful trespasser is consistent with the rule stated in § 927, Comment f, on the contrasting liabilities of innocent and of guilty converters when additions have been made to the converted chattels. Statutes in some states permit double or treble damages against a wilful trespasser. (Emphasis added.)

       Restatement (Second) of Torts § 929 cmt. e provides:
      Discomfort and annoyance to an occupant of the land and to the members of the household are distinct grounds of compensation for which in ordinary cases the person in possession is allowed to recover in addition to the harm to his proprietary interests. He is also allowed to recover for his own serious sickness or other substantial bodily harm but is not allowed to recover for serious harm to other members of the household, except so far as he maintains an action as a spouse or parent, under the rules stated in §§ 693 and 703. The owner of land who is not an occupant is not entitled to recover for these harms except as they may have affected the rental value of his land.

        Hassoldt v. Patrick Media Group, Inc., 100 Cal. Rptr. 2d 662, 676 (Cal. Ct. App. 2000); Webster v. Boone, 992 P.2d 1183, 1185-86 (Colo. Ct. App. 1999), Burt v. Beautiful Savior Lutheran Church of Broomfield, 809 P.2d 1064, 1069 (Colo. Ct. App. 1990); Lanier v. Burnette, 538 S.E.2d 476, 480 (Ga. Ct. App. 2000); Hurtle v. Nelson, 15 P.3d 484, 488 (Mont. 2000); French v. Ralph E. Moore, Inc., 661 P.2d 844, 847-48 (Mont. 1983); Lunda v. Matthews, 613 P.2d 63, 67 (Or. Ct. App. 1980); Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1246 (Utah 1998); see also Houston v. Texaco, Inc., 538 A.2d 502, 505 (Pa. Super. Ct. 1988) (plaintiffs claiming injury to real property the result of defendant's negligence)

       Because the dismissal with prejudice of the claims for relief for damages outside the right-of-way was based on the Gallaghers' own motion, they are not entitled to a trial on these claims on remand. We-can be no more specific than this because we are uncertain of the division the parties intended in their stipulation by distinguishing between "claims for damages within the right-of-way" and "claims for damages outside the right-of-way."