in the Court of Appeals 30 October 2018.
by defendants from order entered 13 November 2017 by Judge R.
Allen Baddour in Wake County No. 15 CVS 6560 Superior Court.
Poe Adams & Bernstein LLP, by Jamie S. Schwedler and
Michael J. Crook, for plaintiff-appellee.
Offices of F. Bryan Brice, Jr., by F. Bryan Brice, for
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.
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.
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
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.
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.
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.
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
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.
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