CCH Investments LLC v. American Transmission Company LLC

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 4, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP896 Cir. Ct. No. 2021CV2004

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

CCH INVESTMENTS LLC,

PLAINTIFF-APPELLANT,

V.

AMERICAN TRANSMISSION COMPANY LLC
AND ATC MANAGEMENT INC.,

DEFENDANTS-RESPONDENTS.

APPEAL from a judgment of the circuit court for Dane County:
RYAN D. NILSESTUEN, Judge. Affirmed.

Before Blanchard, Graham, and Nashold, JJ.

¶1 GRAHAM, J. CCH Investments LLC appeals a final judgment
entered following a jury trial in this WIS. STAT. § 32.06(10) (2021-22) just
No. 2023AP896

compensation action.1 The purpose of the trial was to determine the amount of
just compensation to which CCH is entitled for the taking of a transmission line
easement on its property by American Transmission Company LLC and ATC
Management Inc. (collectively, “ATC”). On appeal, CCH argues that the circuit
court’s decisions on two of its pretrial motions in limine were erroneous, and that
it is entitled to a new trial. Specifically, CCH argues that the court erred by
allowing references to the term “compensation” during the trial, and by allowing
ATC to testify about its intended use of the easement. We reject CCH’s
arguments and affirm.

BACKGROUND

¶2 CCH has owned a parcel of commercial real estate in Waunakee
since 2012. At the time CCH purchased the parcel, it was encumbered by a
transmission line easement that had been in place since 1915 (the “1915
easement”). Pursuant to the 1915 easement, ATC had erected a steel lattice
transmission tower on a corner of the parcel, and it had run electrical transmission
wires between the tower on CCH’s parcel and the towers on other parcels. The
precise boundaries of the 1915 easement are not delineated and, during the circuit
court proceedings, the parties disputed the meaning of certain terms of the 1915
easement and the extent to which it encumbers CCH’s property rights. However,
those disputes are not directly material to the issues in this appeal.2

1
All references to the Wisconsin Statutes are to the 2021-22 version.
2
By its terms, the 1915 easement granted ATC the perpetual right to “enter upon said
premises” for the purpose of erecting and maintaining a transmission tower and running electrical
wires along a specified centerline, which ran parallel to the parcel’s eastern and northeastern
boundaries. The parties here disputed, among other things, whether the 1915 easement granted
ATC the right to rebuild the existing tower and transmission lines, and the width of the right of
(continued)

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No. 2023AP896

¶3 In 2021, as part of a project to rebuild and upgrade the transmission
line that passes through CCH’s parcel, ATC exercised its eminent domain
authority to acquire an updated easement (the “new easement”). The record
reflects that ATC intends that the new easement will replace the 1915 easement,
and that, upon the completion of this case, ATC will relinquish the 1915 easement.

¶4 The new easement follows the same general path that the 1915
easement follows along the eastern and northeastern boundaries of the parcel.
However, unlike the 1915 easement, the width and boundaries of the new
easement are precisely delineated—the new easement is .68 acres and encumbers
approximately 22 percent of CCH’s parcel.

¶5 In the course of rebuilding the transmission line, ATC took down the
steel lattice tower and replaced it with a steel monopole tower. The new
monopole tower is in a slightly different location than the location of the prior
lattice tower, approximately 14 feet closer to the boundary of CCH’s parcel.

¶6 CCH did not dispute ATC’s right to take the new easement;
however, the parties could not reach an agreement about the amount of just
compensation to which CCH is entitled. Pursuant to WIS. STAT. § 32.08(5) and
(6), the county condemnation commission issued a just compensation award.
CCH appealed the commission’s award to the circuit court pursuant to WIS. STAT.
§ 32.06(10), seeking a jury determination regarding just compensation.

way granted by the 1915 easement. The circuit court ultimately interpreted the terms of the 1915
easement as allowing ATC to remove and replace the tower and wires on the centerline described
in the 1915 easement, and as granting ATC access to the portion of the CCH parcel beyond the
centerline that was reasonable and necessary for the purposes for which the 1915 easement was
granted. CCH does not challenge these pretrial rulings in this appeal.

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No. 2023AP896

¶7 Throughout the course of this litigation, the parties have disputed the
amount by which the new easement reduced the value of CCH’s parcel—an issue
that was tied directly to the parties’ disputes regarding the extent to which the
1915 easement burdened CCH’s property rights. CCH’s position has been that the
new easement is significantly more burdensome than the 1915 easement, and that
the taking resulted in a significant decrease in the fair market value of CCH’s
parcel. CCH’s appraiser, Scott MacWilliams, opined that the CCH parcel lost
approximately 8 percent of its fair market value as a result of the new easement.
By contrast, ATC’s position has been that the new easement is not substantially
different from the 1915 easement, and that the taking resulted in only a modest
reduction of the fair market value of CCH’s parcel, as compared to the fair market
value of the parcel as burdened by the 1915 easement. ATC’s appraiser, Kevin
Zarem, opined that the CCH parcel lost approximately 1.2 percent of its fair
market value as a result of the new easement.

¶8 Shortly before the trial, the parties filed various motions in limine,
and the circuit court’s rulings on two of CCH’s motions are the subject of this
appeal. The first of CCH’s motions sought to preclude “jury instructions,
testimony, and exhibits regarding the effect of the special verdict.” The second
sought to preclude “testimony relating to the manner or frequency with which the
easement will be used.” The parties filed written briefs for and against the
motions, which the circuit court addressed during a pretrial hearing. We discuss
the parties’ arguments and the court’s rulings at greater length in the discussion
below.

¶9 CCH’s just compensation action proceeded to trial. Consistent with
the special verdict set forth in WIS JI—CIVIL 8101, the jury was asked to
determine “the fair market value of the entire property owned by CCH” as of the

4
No. 2023AP896

date of the taking and “the fair market value of the remaining property owned by
CCH … immediately after ATC acquired the new easement on [the date of the
taking], as if the transmission line project was completed by [that date].” Based
on the jury’s answers to these questions, the circuit court determined that the value
of CCH’s property decreased by $17,345, and it entered judgment accordingly.
CCH appeals.3

DISCUSSION

¶10 As noted, CCH challenges two of the circuit court’s pretrial rulings
regarding its motions in limine on appeal. It argues that the court erred when it
allowed witnesses and counsel to use the term “compensation,” and when it
allowed a witness to testify about ATC’s intended use of the transmission line
easement. We review a decision to admit or exclude evidence under an erroneous
exercise of discretion standard. Gaethke v. Pozder, 2017 WI App 38, ¶23, 376
Wis. 2d 448, 899 N.W.2d 381. A court erroneously exercises its discretion if,
among other things, its evidentiary decision is based on an incorrect view of the
law. Estate of Kriefall v. Sizzler USA Franchise, Inc., 2012 WI 70, ¶15, 342
Wis. 2d 29, 816 N.W.2d 853 (citations omitted).

3
In its appellate briefing, ATC sometimes cites to the appendix that was submitted with
CCH’s brief without including parallel citations to the appellate record that was compiled by the
clerk of the circuit court. We remind counsel that the appendix is not the record, United Rentals,
Inc. v. City of Madison, 2007 WI App 131, ¶1 n.2, 302 Wis. 2d 245, 733 N.W.2d 322, and that
the state rules of appellate procedure require parties to include appropriate citations to the record,
see WIS. STAT. RULE 809.19(1)(d)-(e).

5
No. 2023AP896

I.

¶11 The first issue on appeal is whether the circuit court erred by
allowing witnesses and counsel to use the term “compensation” in the presence of
the jury when referring to the amount by which the new easement reduced the
value of CCH’s parcel. As discussed above, the special verdict asked the jury to
determine “the fair market value of the entire property owned by CCH” as of the
date of the taking (sometimes referred to as the “before value”), as well as “the fair
market value of the remaining property owned by CCH … immediately after ATC
acquired the new easement …, as if the transmission line project was completed
by [that date]” (sometimes referred to as the “after value”). According to CCH,
the use of the term “compensation” at trial violated Zombkowski v. Wisconsin
River Power Co., 267 Wis. 77, 64 N.W.2d 236 (1954), and Besnah v. City of
Fond du Lac, 35 Wis. 2d 755, 151 N.W.2d 725 (1967), because it informed the
jury “of the effect of the special verdict”—namely, that the before and after values
found by the jury would be used to calculate the compensation that ATC would
pay CCH for the easement.4

¶12 By way of background, CCH first raised this issue in a motion in
limine, which, as noted, sought to preclude “jury instructions, testimony, and

4
In its opening appellate brief, CCH also contends that it was error to allow the jury to
hear references to CCH’s “damages,” but we reject that assertion without further discussion based
on the representations that CCH made during the circuit court proceedings. Specifically,
although CCH’s brief in support of its motion in limine asked the court to preclude use of the
term “damages,” CCH’s attorney took that request off the table during the pretrial hearing,
explaining that CCH was not concerned about the use of that term because the expert witnesses
retained by the parties agreed “that the property is damaged by the easement.” CCH failed to
preserve this aspect of its motion in limine in the circuit court, and it therefore cannot now assert
error on that basis on appeal. See Atkinson v. Mentzel, 211 Wis. 2d 628, 642-43, 566 N.W.2d
158 (Ct. App. 1997) (when an allegedly erroneous ruling was invited by the appellant during the
circuit court proceedings, we “will not review [the] invited error”).

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No. 2023AP896

exhibits regarding the effect of the special verdict.” In support of its motion, CCH
cited to Zombkowski, 267 Wis. at 81, which disapproved of a jury instruction that
informed the jury that “[t]he difference in the fair market value of the [property] as
a whole before and after the [taking], if any, constitutes the damages caused to the
plaintiff.” Id. The Zombkowski court disapproved of the instruction based on the
“fundamental rule in the trial of cases … that the jury should not be informed of
the effect of its answers to the questions of a special verdict.” Id. CCH also cited
Besnah for the proposition that, “even in condemnation cases, a jury should not be
informed of the effect of its answers to the questions of a special verdict.”
Besnah, 35 Wis. 2d at 759 (emphasis added) (citing Zombkowski, 267 Wis. at 81).
The Besnah court’s discussion on this point was focused on the proper form of the
special verdict: “The proper form of submission of the issue of damages to the
jury is in the form of a two-question special verdict, one question asking for a
finding as to the before-taking value of the owner’s whole parcel and the other
asking for a finding as to the after-taking fair market value ….” Besnah, 35
Wis. 2d at 758-59.

¶13 In support of its motion in limine, CCH argued that, consistent with
the special verdict form that was approved in Besnah and as set forth in WIS JI—
CIVIL 8101, the jury should be asked only to determine the value of the parcel
before and immediately after the taking, and nothing more. CCH further argued
that “evidence or exhibits that talk about how much the landowner will be paid
and just compensation, as opposed to the before and after values, [are] not relevant
and should be excluded.”

¶14 ATC opposed the motion, at least in part. It agreed that the jury
instructions and special verdict form should be consistent with WIS JI—
CIVIL 8101, which, as discussed above, addresses the before and after values of

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No. 2023AP896

the property. However, ATC opposed CCH’s request to prohibit witnesses and
attorneys from referencing the concept of compensation at trial. ATC argued that
it would needlessly hamstring the presentation of evidence to prevent witnesses
and attorneys from speaking freely and naturally about the concepts that would be
evident to all. ATC argued that the jurors would surely “understand what’s at
stake” in this trial, “the same way a jury understands that plaintiffs in personal
injury cases seek compensation for their injuries.” That is, the jurors would
readily understand that the special verdict answers would be used to calculate the
compensation due to CCH, and nothing would be gained by requiring witnesses
and attorneys to take the extra efforts necessary to avoid using that obvious and
natural term.

¶15 During the final pretrial hearing, the circuit court indicated that it
intended “to stick to the standard instructions … and verdict form,” and would not
specifically instruct the jury about the effect of its verdict. However, as for the
remaining aspects of CCH’s motion, the court considered it impractical to
“prohibit any mention or discussion of [compensation] at any other point.” The
court explained that it had “to be able to introduce the case to the jury,” and that
witnesses would be likely to “mention compensation at some point.” The court
reasoned that “jurors are smart” and would be able to “draw two and two together”
to figure out that the dispute was about the compensation owed to CCH. “[W]e
should be good,” the court stated, “so long as” the concept of compensation was
not “a major focus” of the testimony.

¶16 At that point, CCH’s attorney interjected to clarify that CCH’s
primary “concern” was with “the term just compensation,” which was “the crux of
our motion.” According to counsel, that term should be avoided at trial “because
it brings in a consideration of equity damages.” In response to this clarification,

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No. 2023AP896

the court indicated that it would be “fine” if witnesses said “just compensation or
compensation at some point,” but that the court did not want anyone focusing on
those terms.

¶17 Neither the circuit court, the attorneys, nor the witnesses used the
specific term “just compensation” at trial. However, both sets of attorneys and
appraisers referenced the change in value to the parcel that resulted from the
taking, and occasionally referred to that number as the “compensation” that ATC
would have to pay CCH for the new easement.

¶18 For example, in his opening statement, CCH’s attorney described the
“sole issue” that the jury would be “asked to decide” as follows: “The sole issue
that you, the jury, are asked to decide is how much did [CCH’s] property go down
in value because of the transmission line that [ATC] built?” The attorney went on
to explain that “both sides agree that the property lost value” as a result of the
transmission project, and the question was “how much.” CCH’s attorney
foreshadowed the trial evidence as a disagreement between two appraisers—
CCH’s appraiser, MacWilliams, who opined that the value of the parcel “goes
down by [$]139,700”; and ATC’s appraiser, Zarem, who opined that “the property
goes down by $14,000.”

¶19 It was CCH’s appraiser, MacWilliams, who first used the term
“compensation” at trial. At that point, which occurred during his direct
examination, MacWilliams expressly linked the term “compensation” with the
difference in the before and after values of the CCH parcel. When asked by
CCH’s attorney what he had been retained to do, MacWilliams testified that he
had been “asked to do a before-and-after valuation” to calculate “compensation as
a result of the encumbrance of [CCH’s] property by an easement for a

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No. 2023AP896

transmission line.” Then, at the close of MacWilliams’s direct testimony, CCH
presented an exhibit summarizing his calculation of “Compensation Before/After,”
which he calculated as the difference between the “Before Value” ($1,746,600)
and the “After Value” ($1,606,900), amounting to “Compensation Before/After”
of “$139,700.”

¶20 In its opening appellate brief, CCH does not mention use of the term
“compensation” on its own behalf at trial. It instead points to scattered instances
in which ATC’s appraiser and attorney used the term in a manner that was similar
to how MacWilliams had used the term in his testimony and report.5 CCH argues
that, through these references, the circuit court allowed ATC to improperly inform
the jury “of the effect of the special verdict” which, CCH contends, was reversible
error. We disagree for at least the following reasons.

5
For example, CCH directs us to the following direct examination of ATC’s appraiser,
Zarem, which parallels the examination of CCH’s expert discussed above:

[ATC’s attorney:] Before we get into the details of
[your report], could you just give us a summary of your
conclusions of value.

[Zarem:] Well, you guys have heard the concepts of the
before-value, which is the original condition in -- with the old
easement, and the after-value, which is the -- you know, the
value of the property with the new easement.

I thought the before-value -- my conclusion was
$1,182,000; and my after-value, my conclusion was $1,168,000;
and that results in a compensation of $14,000, which is the
difference between the before-value and the after-value.

CCH did not object to this testimony. Nor did it object when ATC offered an exhibit
summarizing Zarem’s opinions, which calculated the amount of compensation as $14,000.

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No. 2023AP896

¶21 First, during the pretrial hearing, CCH clarified that the “crux” of its
“concern” was the use of the term “just compensation.” CCH got what it asked for
in that respect—the term “just compensation” was not uttered during trial.

¶22 Second, as for the use of the term “compensation,” it was CCH that
first introduced the term at trial, expressly linking it to the “decrease in value” in
the property that was caused by the easement. Thus, to the extent that the mere
reference to “compensation” violates the rule against informing the jury of the
effect of its verdict in a manner that was prejudicial to CCH, it was CCH that first
led the jury down that path.

¶23 Third, as we now explain, we are not persuaded that the circuit
court’s ruling on CCH’s motion in limine violated Zombkowski, Besnah, or any
other case.

¶24 The reason for the rule against informing the jury about the effect of
its answers to special verdict questions is that jurors are not supposed to “concern
themselves about whether the verdict answers will be favorable to one party or to
the other party, nor … with what the final result of the law suit may be.” Delvaux
v. Vanden Langenberg, 130 Wis. 2d 464, 481-82, 387 N.W.2d 751 (1986); see
also McGowan v. Story, 70 Wis. 2d 189, 197, 198, 234 N.W.2d 325 (1975) (the
rule is designed “to secure a direct answer free from any bias or prejudice in favor
of or against either party,” and “to get the jury to answer each question according
to the evidence, regardless of the effect or supposed effect of the answer upon the
rights of the parties as to recovery” (citations omitted)). As discussed above,
Zombkowski disapproved of a jury instruction that explained how “damages”
would be calculated in a takings case, Zombkowski, 267 Wis. at 81, and Besnah
prescribed the proper form of the special verdict, Besnah, 35 Wis. 2d at 759.

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No. 2023AP896

Here, the circuit court followed these cases to the letter with regard to the jury
instructions and the form of the special verdict.

¶25 We do not read Zombkowski or Besnah as extending further to
categorically prohibit any and all reference to the term “compensation” in a just
compensation case. As our supreme court has explained, remarks by witnesses or
attorneys are “not improper merely because an intelligent juror might be able to
infer therefrom the effect upon the final result of [the juror’s] answers to the
special verdict.” Kobelinski v. Milwaukee & Suburban Transp. Corp., 56
Wis. 2d 504, 521, 202 N.W.2d 415 (1973). Indeed, in Besnah, shortly after
repeating the rule that a jury should not be informed of the effect of its verdict, the
court went on to reproduce the plaintiff’s appraiser’s trial testimony from that
case, which featured heavy use of the term “damages.” Specifically, the appraiser
was asked about his “opinion as to the total damages” during his direct
examination, and on cross-examination, he reasserted his opinion about the dollar
value of “the damage to the plaintiff for the taking of the land.” Besnah, 35 Wis.
2d at 760-61. The Besnah court raised no concern about the appraiser’s
testimony, even though a jury could readily infer from that testimony that its
answer to the special verdict questions would be used to calculate the damages
that would be paid as compensation for the taking.

¶26 Finally, even if we were to consider the use of the term
“compensation” to be a technical violation of the rule (and we have explained why
we do not), any such violation would undoubtedly be harmless. WISCONSIN STAT.
§ 805.18(2) provides in pertinent part:

No judgment shall be reversed or set aside or new
trial granted in any action or proceeding on the ground of ...
error as to any matter of pleading or procedure, unless …,
after an examination of the entire action or proceeding, it

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No. 2023AP896

shall appear that the error complained of has affected the
substantial rights of the party seeking to reverse or set aside
the judgment, or to secure a new trial.

For an error to affect a party’s substantial rights, there must be a reasonable
possibility that the error contributed to the outcome of the trial. Martindale v.
Ripp, 2001 WI 113, ¶32, 246 Wis. 2d 67, 629 N.W.2d 698; see also Ellsworth v.
Schelbrock, 229 Wis. 2d 542, 563, 600 N.W.2d 247 (Ct. App. 1999) (comments
by an attorney that informed the jury of the effect of its answers to the special
verdict cannot have affected the outcome of the trial if it “states no more than is
apparent to the entire jury panel based on the parties’ contentions during the
trial”).

¶27 Here, CCH has not explained how both parties’ brief references to
the concept of compensation could have affected its substantial rights. During the
pretrial proceedings, CCH asserted that these references would invite the jury to
“[c]onsider[] the difference” in the before and after values, which would “lead the
jury down the road of an equitable balancing analysis of whether” the
compensation CCH would receive was “‘too much’ or ‘too little.’” And on
appeal, CCH asserts that ATC’s occasional references to compensation
“refocused” the jury’s attention “from the task of finding before and after values”
to the task of “finding a specific amount of compensation or damages to award
[CCH].” Yet, CCH fails to explain how the mere use of the term “compensation”
would have refocused the jury’s attention any more than the comments that CCH’s
attorney made throughout the course of the trial, which encouraged the jury to
evaluate the change in value of the parcel that resulted from the taking as a dollar
amount that represented a percentage reduction in the before value.

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No. 2023AP896

II.

¶28 The second issue on appeal is whether the circuit court erred when it
allowed ATC’s witnesses to testify about the “manner and frequency” with which
ATC had used its 1915 easement and intended to use the new easement. CCH
relies on Savage v. American Transmission Co., LLC, 2013 WI App 20, ¶16, 346
Wis. 2d 130, 828 N.W.2d 244, for the proposition that a jury must consider “the
most injurious use reasonably possible” of a property under the terms of an
easement when determining the after value of the property. According to CCH,
under Savage, ATC should not have been allowed to present any evidence about
how it expected to use the new easement, because that evidence could have led the
jury to determine an after value of the parcel based on something less than “the
most injurious” use that ATC’s new easement would allow.

¶29 By way of background, CCH first raised this issue in its second
motion in limine. In its brief, CCH cited Savage for the proposition that “[t]he
after value must be based upon the expectation that [ATC would] exercise all of
the rights they have acquired.” It argued that any testimony from ATC’s
representatives about how ATC “typically” uses or “‘anticipate[s]’ using the
easement” should be excluded because it was “not relevant” and would “only
serve to confuse and mislead the jury.”6

¶30 The circuit court denied the motion, essentially on the grounds that
Savage directs that the jury’s assessment of after value should be based on the

6
CCH did not ask the circuit court to give a jury instruction based on the standard
articulated in Savage v. American Transmission Co., LLC, 2013 WI App 20, ¶16, 346 Wis. 2d
130, 828 N.W.2d 244, regarding the “most injurious use,” and no such instruction was given.

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No. 2023AP896

most injurious use that was “reasonably possible,” (citing Savage, 346 Wis. 2d
130, ¶16), and that evidence regarding how ATC actually uses its transmission line
easements was relevant to the jury’s determination of what was “reasonably
possible.” In issuing its ruling, the court further explained that CCH could present
evidence and argument that ATC would be able to use all of the “broad” rights
granted by the new easement, and that ATC would not “be able to deny” that they
could use all of those rights.

¶31 Then, at the trial, much of the evidence and argument related to the
differences between the terms of the 1915 easement and the terms of the new
easement, and the extent to which the terms of the new easement were more
burdensome than the terms of the 1915 easement. ATC’s senior real estate project
manager, Kevin Lynch, testified about these differences, and also about ATC’s use
of the 1915 easement and its intended use of the new easement. Among other
things, Lynch testified that ATC’s intended use of the new easement was
substantially similar to its prior use of the 1915 easement. Then, on cross-
examination, Lynch acknowledged, among other things, that “it’s the actual
easement document that governs the rights that ATC has acquired on the [CCH]
property,” and that the new easement document would “govern[] the restrictions
on the property moving forward.” Lynch further acknowledged that the new
easement document does not limit the number of poles that ATC can erect on the
easement in the future, that it does not specify any location of any additional poles
that could be erected on the easement, and that it does not set forth any limitation
on the voltage that could be transmitted by ATC’s transmission line.

¶32 On appeal, CCH argues that the circuit court erred by allowing
Lynch to testify about ATC’s actual and intended use of the new easement.
According to CCH, Savage sets forth a rule of exclusion, under which all evidence

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No. 2023AP896

of ATC’s actual or intended use of an easement is irrelevant and inadmissible. For
reasons we now explain, we disagree with this interpretation of Savage.

¶33 In Savage, the transmission company owned an existing easement
on which it had built a transmission line through Savage’s property, and it later
acquired a supplemental easement on a strip of land that ran alongside the existing
easement. Id., ¶4. The problem that this court identified in Savage was that the
circuit court had misinterpreted the scope of the property rights that Savage lost as
a result of the supplemental easement, and the circuit court dismissed the case
without a trial based in part on its misinterpretation of the supplemental easement.
Id., ¶¶2, 6, 10-13.

¶34 On appeal, we explained that, in misinterpreting the scope of the
easement, the circuit court had “erroneously focused on what [the transmission
company] stated that it intended to do within the Supplemental Easement area
rather than allowing a jury to consider how the express rights, restrictions, and
limitations imposed by the Supplemental Easement affect the value of the ‘whole’
property on a before and after basis.” Id., ¶15. It was in this context that we
reiterated the general principle that “[c]ompensation for the taking of an easement
is based on an assumption that the condemnor … will exercise all the rights it has
taken,” and that “[t]he jury must consider the most injurious use of the property
reasonably possible.” Id., ¶16.

¶35 Understood in this context, it is apparent that Savage does not
mandate the exclusion of any evidence about how an easement might actually be
used. Indeed, the Savage court cited Hoekstra v. Guardian Pipeline, LLC, 2006
WI App 245, 298 Wis. 2d 165, 726 N.W.2d 648, for the proposition that “[a]ny
factor … that affects the fair market value of property and that could influence the

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No. 2023AP896

decision of a prospective buyer should be considered in the valuation.” Savage,
346 Wis. 2d 130, ¶16 (quoting Hoekstra, 298 Wis. 2d 165, ¶33). What is
reasonably possible under the terms of the new easement is a fact question that
will inevitably give rise to disputes and competing evidence for the jury to weigh
and evaluate. Information about how ATC typically uses its transmission line
easements was undoubtedly relevant to the jury’s consideration of the most
injurious use reasonably possible and, in turn, a prospective buyer’s consideration
of the fair market value of the CCH parcel after the taking. We therefore conclude
that the circuit court did not err by allowing this evidence.7

CONCLUSION

¶36 For all of these reasons, we reject CCH’s arguments and affirm the
judgment.

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

7
On appeal, CCH also argues that the circuit court erred when, over CCH’s objection,
the court allowed ATC’s attorney to use a chart during his closing argument that compared the
rights taken under the 1915 easement with the rights taken under the new easement. CCH argues
that the court should have sustained its objection because the chart “did not accurately reflect the
rights actually granted in the [new] easement,” and improperly “invited the jury to examine the
value of the rights gained [by ATC], rather than the impact of the easement on the CCH
property.” In its response brief, ATC points out that the version of the chart it used during its
closing argument is not included in the appellate record. ATC argues that, because the chart is
not part of the record, CCH cannot meet its burden to show that the circuit court erred by
overruling its objection. CCH does not respond to this argument it its reply brief and, on that
basis, we deem CCH to have conceded the argument. See United Co-op v. Frontier FS Co-op,
2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to reply to
respondent’s argument may be deemed conceded).

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