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Duke Energy Progress, Inc. v. Kane

Court of Appeals of North Carolina

April 16, 2019


          Heard in the Court of Appeals 30 October 2018.

          Appeal by defendants from order entered 13 November 2017 by Judge R. Allen Baddour in Wake County No. 15 CVS 6560 Superior Court.

          Parker Poe Adams & Bernstein LLP, by Jamie S. Schwedler and Michael J. Crook, for plaintiff-appellee.

          Law Offices of F. Bryan Brice, Jr., by F. Bryan Brice, for defendant-appellants.

          BRYANT, JUDGE.

         Where plaintiff had a right to enter defendants' properties pursuant to a valid easement, we affirm the trial court's ruling of summary judgment in favor of plaintiff.

         In 1911, the predecessor to plaintiff Duke Energy Progress, Inc., recorded with the Wake County Register of Deeds, an easement over a 50-foot strip of land for the purpose of maintaining high-voltage power lines. The easement granted the right to maintain, operate, and "keep in right" the easement (hereinafter "Easement Agreement"). In addition, the Easement Agreement grants plaintiff "the right to clear and keep cleared, at least fifty (50) feet of the said right of way, and the perpetual right to maintain, operate[, ] and keep in repair the line . . . ." Over the next century, as the area developed, the property remained burdened by the easement.

         Defendants David E. Tyson and Treva W. Tyson ("the Tysons") purchased their property in 1995. Defendants John M. Kane and Katherine K. Kane ("the Kanes") purchased their property in 2013. Both properties were subject to the recorded easement, which was in their chain of title and over which the power lines were visible. In 2017, the Kanes sold their property to defendants William Bateman Nicholson, Jr., and Lauren Elizabeth Stange (together "the Kane Successors"), who were made parties to the lawsuit. The Kanes remained named parties as permitted by Rule 25(d). We refer to all of the above, whose properties were subject to the recorded easement, collectively, as "defendants."

         In late December 2014, plaintiff conducted routine maintenance of the power line and discovered two trees inside the 50-foot radius: a 44-foot tall willow tree on the Kanes' property and a 57-foot tall dawn redwood tree on the Tysons' property. The power line was 10 feet above the willow tree and 6 feet above the redwood tree. Due to their height, species, character, and proximity, plaintiff determined it was necessary to remove both trees because the power lines were susceptible to snag and could interfere with providing electricity to its customers. Plaintiff notified defendants of its concerns that necessitated its intent to remove the trees and requested access to defendants' properties. Defendants denied plaintiff access.

         On 18 May 2015, plaintiff filed a complaint for declaratory relief to enforce the Easement Agreement--specifically, for plaintiff to enter the properties and remove the trees. Plaintiff also sought a preliminary injunction to prevent defendants from interfering with plaintiff's entry onto their properties. On 4 June 2015, plaintiff's motion for preliminary injunction was granted in part as to the redwood tree and denied in part as to the willow tree. The trial court found that while the redwood tree presented eminent risk of damage to the power line, the willow tree was not likely to cause damage.

         On 3 March 2016, plaintiff filed an amended complaint. In response, defendants filed an answer and asserted counterclaims including a color of title counterclaim, to wit: that "[t]he easement holder[, ] under the terms of the easement agreement[, ] abandoned the easement on or about the year 1914 by failing to occupy and use the easement-bound property." Plaintiff filed a motion to dismiss and reply to the counterclaims. By order dated 17 October 2016, the trial court dismissed defendants' color of title claim under the Marketable Title Act.

         On 17 April 2017, plaintiff moved for summary judgment on all claims and counterclaims presented by defendants. Plaintiff requested the motion be granted on grounds that:

1. [Plaintiff] is entitled to judgment as a matter of law on its claim for Declaratory Judgment because the plain and unambiguous language of the easement agreement allows [plaintiff] to remove both trees at issue in this lawsuit;
2. [Plaintiff's] claim is not barred by the statute of limitations because [plaintiff] asserted its claim to remove an encroachment within the applicable twenty-year limitations periods; and
3. Defendants' counterclaims for a "prescriptive easement" and an "adverse easement" over their own property fails because, to the extent such claims exist under North Carolina law, there is no evidence of [d]efendants' hostile use of the easement area throughout the twenty-year prescriptive period.

         Defendants also moved for summary judgment asserting plaintiff's action was barred by the statute of limitations. The cross-motions were heard before the Honorable R. Allen Baddour, Judge presiding, who granted plaintiff's motion ...

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