Appeal by defendants from order entered 14 February 1997 by Judge Wiley F. Bowen in Harnett County Superior Court.
Timmons-goodson, Judge. Judges Lewis and Walker concur.
The opinion of the court was delivered by: Timmons-goodson
This action arises out of the alleged trespass of defendants Harry R. Leveris, and wife, Betty W. Leveris, upon the property of plaintiffs Phil Moore, his wife, Linda Moore, W. R. Moore, and his wife, Elaine Moore. Plaintiffs and defendants are adjoining landowners. Plaintiffs enjoy undisputed title to a 17.33 acre tract of land which abuts State Road 1805 (also known as "Weeks Road") in Harnett County, North Carolina. Defendants own a one acre tract of land upon which their home is situated. Defendants' tract of land and home front State Road 1805, and defendants have direct access to this road.
In late 1989, when defendants decided to build a home on their tract, they could not obtain a septic tank permit from the Harnett County Health Department, because the land is not suitable for septic tank use. Defendants' land is located in the country and is, therefore, not served by a county sewer system. Defendants subsequently learned of a way by which they could pump their sewage from their land to Gary Webb's adjoining property where it would then perk and thereby meet health department standards.
On 19 January 1990, defendants obtained an easement from Webb, which permitted the installation of a sewer line under Webb's land and maintenance of holding tanks and a sewage absorption field on his land to dispose of defendants' sewage. This easement is recorded in Deed Book 906 at page 894 of the Harnett County Registry. Defendants also dug a trench on plaintiffs' land and placed their sewer line along the path that runs from Weeks Road by defendants' house (a distance of several hundred yards in a westerly direction) back to a tract of land owned by Webb.
Defendants did not obtain a written, recorded easement from plaintiffs to cross their land with defendants' sewer line, but contend that plaintiffs Phil and W. R. Moore's father, Evander Moore, told defendant Betty Leveris (prior to defendants' laying the sewer line on plaintiffs' property) that defendants did not need an easement because the road was "no man's" land. Defendants contend that Evander Moore told Betty Leveris to put the pipe down, and assured her that there would be no trouble. Plaintiffs deny that they ever gave consent for defendants to lay a sewer line on their property. On 27 March 1990, the Harnett County Health Department issued an improvement permit that allowed defendants to install a septic tank and a pumping station on the land to pump defendants' sewage from defendants' land through an underground sewer line located in a legally recorded easement to land that would perk.
Plaintiffs filed this action on 28 October 1994, alleging that defendants were trespassing on plaintiffs' property with a four inch sanitary sewer line laid for the purpose of disposing of raw sewage from defendants' residence onto the property of Gary Webb. Plaintiffs sought an injunction restraining defendants from further trespass on their property, and a mandatory injunction ordering defendants to remove the sewer line from plaintiffs' land. Defendants filed an answer to plaintiffs' complaint, denying that they were trespassing on plaintiffs' property, and alleging as an affirmative defense, that their sewer line was installed on plaintiffs' property under a claim of right.
Thereafter, on 13 January 1997, plaintiffs filed a motion for summary judgment. In support of their motion, plaintiffs offered defendants' depositions, and several affidavits. Defendants filed their response to plaintiffs' motion for summary judgment on 24 January 1997. This response was supported by the deed of the easement from Gary Webb, and various affidavits. Plaintiffs' motion for summary judgment was heard by Judge Wiley F. Bowen during the 27 January 1997 civil session of Harnett County Superior Court. By order entered 14 February 1997, Judge Bowen granted plaintiffs' motion for summary judgment. Defendants appeal.
Defendants present but one assignment of error on appeal, by which they argue that the trial court erred in granting plaintiffs' motion for summary judgment. For the reasons discussed herein, this assignment of error fails, and accordingly, we affirm the trial court's entry of summary judgment for plaintiffs.
First, defendants contend that summary judgment was improper because there was a genuine issue of material fact as to whether the roadway, under which defendants placed their sewer line, was a neighborhood public road, under which defendants had a right to install the sewer line. Summary judgment is a device by which the necessity of a formal trial may be eliminated, where only questions of law are involved and a fatal weakness in the claim or defense of a party is exposed. Robertson v. Hartman, 90 N.C. App. 250, 368 S.E.2d 199 (1988). At trial, the moving party bears the burden to establish the lack of triable issue of material fact. Davis v. Town of Southern Pines, 116 N.C. App. 663, 449 S.E.2d 240 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995). If the moving party carries this burden, the burden then shifts to the nonmoving party to present a forecast of the evidence which will be available for presentation at trial and which will tend to show that genuine issues of fact remain for trial. Southeastern Asphalt v. American Defender Life, 69 N.C. App. 185, 316 S.E.2d 311 (1984). On appeal, the trial court's entry of summary judgment for a particular party will be affirmed if viewing the evidence in the light most favorable to the nonmoving party, (1) there is no genuine issue of material fact, and (2) the moving party is entitled to judgment as a matter of law. Vassey v. Burch, 301 N.C. 68, 269 S.E.2d 137 (1980)).
In the case sub judice, plaintiffs brought this trespass action against defendants, alleging that defendants had, without permission, placed a sewer disposal line across plaintiffs' property for the purpose of disposing of raw sewage. Defendants, in their answer, claimed that said sewer disposal line had been installed on a public easement (a neighborhood public road), and set forth as an affirmative defense, that the sewer line was installed under claim of right.
In support of their motion for summary judgment, plaintiffs produced evidence that tended to show that they were the record owners of a 17.33 acre tract of land; that plaintiffs' tract is adjacent to defendants' property; that plaintiffs have never granted an easement over the subject property; and that "a [four] inch sanitary sewer force main [is] located on the property of . . . plaintiffs, running for a distance of not less than [one thousand] feet along the northernmost boundary of plaintiffs' [property]." Plaintiffs, then, made a prima facie showing of defendants' trespass on plaintiffs' property.
In rebuttal, defendants presented evidence that tended to show that the area under which their sewer line was installed on plaintiffs' property had been the main road leading from Dunn, North Carolina to Benson, North Carolina; and that various members of the public have used the road for ingress and egress--by foot, horse and wagon, and vehicle. Defendants maintain that this evidence rebuts plaintiffs' evidence of trespass. Specifically, defendants claim that their evidence tends to show that they ...