Brown v. Wisconsin-Minnesota Light & Power Co.

Winslow, C. J. The contract in question called for the conveyance of a fee title to the strip in no uncertain terms. It called for a warranty deed of the land free and clear of all incumbrances, and that means but one thing. True, there were to be certain restrictions on the use of the land, but these do not prevent the title from being a fee or turn it into a mere easement. Polebitzke v. John Week L. Co. 157 Wis. 377, 147 N. W. 703. They are not inconsistent with a fee title: they simply restrict the use of the premises within certain limits. When such restrictions are reasonable and not inconsistent with public interest or public policy they are valid. 13 Cyc. 713 et seq.; 8 Ruling Case Law, p. 1115, § 177. In the present case it is very apparent that the provisions that no towers are to be placed in frqnt of the dwelling house and that the-land is to be used as a right of way for transmission lines are reasonable restrictions upon .the use of the land, and we think the provision with regard to the trimming of trees was intended by the parties as also such a restriction, and it certainly is not unreasonable. It is hardíy to be imagined that the plaintiffs would deliberately surrender the whole front of their estate, covered as it was with shade trees which they themselves had planted and nurtured, to the woodman’s ax without any restriction or qualification. They unquestionably desired to retain the trees as far as was consistent with the operation of the electric transmission wires, and this desire was expressed in the words, “trees to be trimmed so as not to interfere with the lines.” The idea is quite clear though the words used do not with technical correctness describe the restrictive covenant or condition which is to be inserted in the deed. [292] The argument that this language applies only to trees outside of the fifty-foot strip does not seem sound- or convincing. ■ There were but four trees on the plaintiffs’ premises outside of the strip and the street adjacent thereto which the language could possibly refer to. It is not reasonable to suppose that the plaintiffs took such pains to preserve these few trees as the provisions of the contract indicate and turned over more than a hundred others to the defendant to do as it pleased with them without restriction. Nor can we agree with the contention of the appellant that condemnation is the plaintiffs’ only remedy under the principle announced in Hanlin v. C. & N. W. R. Co. 61 Wis. 515, 21 N. W. 623, and followed ever since that time (Cronin v. Janesville T. Co. 163 Wis. 436, 158 N. W. 254), namely, that when one has expressly or tacitly consented to the occupation of his land for railway purposes he cannot bring an action for trespass but must condemn. There was never any consent given here to the cutting down of these trees; on the contrary, there was vigorous objection from the very beginning. We cannot regard the consent which was given to use the premises in a certain restricted way as enabling the defendant to enter and do what it pleased regardless of the restriction to which it had agreed. It could thus accomplish by strategem what it could not accomplish by fair and open dealing. If, as is claimed, it would be difficult to build the transmission line without cutting down the trees, that is something that should have been thought of before the contract was made. It seems to be clearly established by the evidence that a clearance of ten feet is necessary in order to prevent the electric current from leaping from the transmission wire to a branch. The- defendant had the right under its contract to trim the trees so as not'to “interfere” with its lines. -This must be held to mean, under the evidence as given on the trial, that no branch should be left within ten feet of the nearest line, not merely that no branch should physically [293] touch a line. If a branch be near enough so that the current will leap to it from the wire, that clearly constitutes an interference. The result is that there must be a new trial because of the application of a wrong rule of damages. The damages consist of the difference between the value of the farm with the trees trimmed in the manner provided by the contract and its value with the trees cut down. By the Court. — Judgment reversed, and action remanded for a new trial.