Duke Energy Progress , 265 N.C. App. 1 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-239
Filed: 16 April 2019
Wake County, No. 15 CVS 6560
DUKE ENERGY PROGRESS, INC., Plaintiff,
v.
JOHN M. KANE; KATHERINE K. KANE f/k/a KATHERINE KNOTT; DAVID E.
TYSON; TREVA W. TYSON; WILLIAM BATEHAM NICHOLSON, JR.; and
LAUREN ELIZABETH STANGE, Defendants.
Appeal by defendants from order entered 13 November 2017 by Judge R. Allen
Baddour in Wake County Superior Court. Heard in the Court of Appeals 30 October
2018.
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
DUKE ENERGY PROGRESS V. KANE
Opinion of the Court
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
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Opinion of the Court
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:
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Opinion of the Court
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 and
denied defendants’ motion on 6 November 2017. Defendants appeal.
_________________________________________________________
On appeal, defendants challenge the trial court’s grant of summary judgment
in favor of plaintiff contending that the Easement Agreement is ambiguous and
presents a genuine issue of material fact.
“Our standard of review of an appeal from summary judgment is de novo; such
judgment is appropriate only when the record shows that there is no genuine issue
as to any material fact and that any party is entitled to a judgment as a matter of
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Opinion of the Court
law.” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and
quotation marks omitted).
Rule 56 of the North Carolina Rules of Civil Procedure provides that any party
is entitled to judgment as a matter of law “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact[.]” N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2017). “In a motion for summary judgment, the evidence presented to the trial court
must be . . . viewed in a light most favorable to the non-moving party.” Hart v.
Brienza, 246 N.C. App. 426, 430, 784 S.E.2d 211, 215 (2016) (citations and quotation
marks omitted).
A party moving for summary judgment may prevail if it
meets the burden (1) of proving an essential element of the
opposing party’s claim is nonexistent, or (2) of showing
through discovery that the opposing party cannot produce
evidence to support an essential element of his or her
claim. . . . If the moving party meets this burden, the non-
moving party must in turn either show that a genuine issue
of material fact exists for trial or must provide an excuse
for not doing so.
Id.
I. Statute of Limitations
First, defendants assert that plaintiff’s claims are procedurally barred by the
statute of limitations as both the willow tree and the redwood tree had been planted
outside the statute of limitations. Defendants concede the twenty-year statute of
limitations applies to the willow tree, but argue that the willow tree has been planted
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Opinion of the Court
for over thirty years–outside the period for plaintiff to assert claims. We note that
since defendants filed for appellate review of the trial court’s order, the willow tree
has been felled. As the redwood tree remains in dispute, we will address defendants’
issues as to the redwood tree only.
Ordinarily, the question of whether a cause of action is
barred by the statute of limitations is a mixed question of
law and fact. However, when the bar is properly pleaded
and the facts are admitted or are not in conflict, the
question of whether the action is barred becomes one of law
and summary judgment is appropriate.
Pembee Mfg. Corp. v. Cape Fear Const. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353
(1985) (internal citations omitted).
An easement, while considered to be an incorporeal hereditament, is also real
property because it “implies an interest in the land” that grants a degree of control
over a specified portion of land. Duke Energy Carolinas, LLC v. Gray, 369 N.C. 1, 6,
789 S.E.2d 445, 448 (2016). Our Supreme Court has stated an encroachment on an
easement is considered an injury to that interest in real property and therefore,
subject to N.C. Gen. Stat. § 1-40 (2017), which governs injuries to real property. See
id. Specifically, where a plaintiff’s claim does not allege damages for any injury to an
easement but instead seeks to regain control over its use of the easement, such claims
are subject to the twenty-year statute of limitations in N.C.G.S. § 1-40. Id.
Defendants, however, argue plaintiff’s claims are subject to a shorter statute
of limitations because color of title exists. Specifically, defendants argue N.C. Gen.
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Opinion of the Court
Stat. § 1-38 governs because plaintiff’s title is defective–leaving ambiguity as to
defendants’ right to grow trees at their residences. As the redwood tree has been
planted for over seven years, defendants argue plaintiff is barred from asserting
claims. For the following reasons, we overrule defendants’ argument on appeal.
Under N.C. Gen. Stat. § 1-38, no action shall be sustained against a possessor
of real property that is known and visible under color of title for seven years. N.C.G.S.
§ 1-38 (2017). “Color of title is bestowed by an instrument that purports to convey
title to land but fails to do so[.]” White v. Farabee, 212 N.C. App. 126, 132, 713 S.E.2d
4, 9 (2011) (emphasis added). “When the description in a deed embraces not only land
owned by the grantor but also contiguous land which he does not own, the instrument
conveys the property to which grantor had title and constitutes color of title to that
portion which he does not own.” Price v. Tomrich Corp., 275 N.C. 385, 391, 167 S.E.2d
766, 770 (1969) (emphasis added).
Defendants’ express statement in their brief contradicts their position that
color of title exists: “[t]here is little dispute that [plaintiff], the current ‘heirs,
successors, and assigns’, ‘forever’ holds this easement right for its stated purposes.
There is little dispute that [plaintiff] has the right to maintain the lines.”
Accordingly, defendants mooted their statute of limitations claim based on color of
title where they acknowledge plaintiff “forever holds [the] easement right” and “has
the right to maintain the lines.” Defendants’ argument is overruled.
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Opinion of the Court
II. Scope of Easement Agreement
Next, defendants argue the trial court erred in failing to determine the scope
of the easement which would cause the “least injury” to defendants’ residential
property. We disagree.
“[T]he interpretation of documents, including deeds and wills, is generally an
issue of law unless a document is ambiguous on its face and, as such, is also
reviewable de novo.” Simmons v. Waddell, 241 N.C. App. 512, 518–19, 775 S.E.2d
661, 670 (2015). “When courts are called upon to interpret deeds or other writings,
they seek to ascertain the intent of the parties, and, when ascertained, that intent
becomes the deed, will, or contract.” Id. at 520, 775 S.E.2d at 671 (citation and
quotation marks omitted).
“An express easement in a deed, as in the instant case, is, of course, a contract.”
Id. (citation and quotation marks omitted).
A contract which is plain and unambiguous on its face will
be interpreted as a matter of law by the court. If the
agreement is ambiguous, however, interpretation of
the contract is a matter for the jury. Ambiguity exists
where the contract’s language is reasonably susceptible to
either of the interpretations asserted by the parties.
Id. (internal citations and quotation marks omitted).
Here, the Easement Agreement delineates plaintiff’s right to enter on the
properties which also includes the right to clear any interferences affecting the
easement:
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Opinion of the Court
And the [grantors] bargain, sell, grant and convey unto
[grantee] . . . the right to clear and keep cleared, at least
fifty (50) feet of the [easement], and the perpetual right to
maintain, operate, and keep in repair the [power] line or
lines[.]” And the [grantee], his heirs, successors and
assigns shall have the right to cut and remove on either
said of the [easement] any timber, trees, overhanging
branches, or other obstructions, which do or may endanger
the safety or interfere with the use of the poles, towers, or
fixtures or wires thereto attached[.]
Also within the Easement Agreement was a condition placed upon plaintiff’s clearing
right that stated, plaintiff “entering upon the [easement] over the land of the
[grantors], shall do so at such place and manner as will do the least injury to the lands
and crops of the [grantors].
On its face, there is little ambiguity in the language of the Easement
Agreement and the circumstances surrounding its creation that the grantors
intended for the grantees––now plaintiff––to access the land in order to “construct,
operate[,] and maintain [the easement] for the purpose of transmitting electric or
other power or telephone or telegraph lines[.]” The Easement Agreement expressly
gives plaintiff a clear, unequivocal right to enter the land and clear any interferences
consistent with the easement right. However, the condition noted above indicates
that plaintiff’s right is not absolute; and thereby, the removal must be justified and
reasonable. See Weyerhaeuser Co. v. Carolina Power & Light Co., 257 N.C. 717, 719,
127 S.E.2d 539, 541 (1962) (“When the language of a contract is clear and
unambiguous, effect must be given to its terms, and the court, under the guise of
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Opinion of the Court
constructions, cannot reject what the parties inserted or insert what the parties
elected to omit.”).
In reviewing the record, we note the trial court’s preliminary injunction order
set forth evidence presented by plaintiff as to the redwood tree’s interference with the
easement and need to remove the tree:
3. A fifty-seven foot tall dawn redwood tree [] stands on
[the Tysons’ property] and also stands within
[plaintiff’s] easement. . . . The [redwood tree] reaches
above the power line and is only six feet away from the
power line horizontally. The [trial c]ourt finds as a fact
that the [redwood tree] poses an eminent risk of contact
with and damage to the power line.
4. The only safe way for [plaintiff] to remove the [redwood
tree] is to come upon [the Tysons’ property] and to
station machinery, equipment, and personnel within
the easement.
Additionally, the trial court in its conclusion of law stated:
4. [Plaintiff] has also shown that the issuance of a
[p]reliminary [i]njunction is necessary to prevent an
irreparable injury, namely a widespread power outrage
that could impact thousands of Wake County citizens.
(emphasis added). The trial court’s findings of fact and conclusions of law are not
disputed by either party. Therefore, it remains a matter of record that the removal
of the redwood tree was necessary to prevent irreparable injury to plaintiff’s
easement. Additionally, the entry onto the Tysons’ property was within reason and
the least injurious.
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Opinion of the Court
Alternatively, defendants have asked this Court to interpret broadly the
condition within the Easement Agreement to mean that plaintiff is limited to what it
can do within the easement. However, where the Easement Agreement is clear as to
plaintiff’s rights to the easement, we decline to impose further restrictions on that
right. See Gaston Cty. Dyeing Mach. Co. v. Northfield Ins. Co., 351 N.C. 293, 300, 524
S.E.2d 558, 563 (2000) (“[T]he courts must enforce the contract as written; they may
not, under the guise of construing an ambiguous term, rewrite the contract or impose
liabilities on the parties not bargained for and found therein.” (citation omitted)).
Accordingly, the trial court’s ruling is
AFFIRMED.
Judge INMAN concurs.
Judge DIETZ concurs with separate opinion.
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No. COA18-239– Duke Energy Progress, Inc. v. Kane
DIETZ, Judge, concurring in the judgment.
The majority correctly holds that the twenty-year limitations period in N.C.
Gen. Stat. § 1-40 applies in this case, not the seven-year limitations period for
possession under color of title in N.C. Gen. Stat. § 1-38. Color of title requires “a
writing that purports to pass title to the occupant but which does not actually do so
either because the person executing the writing fails to have title or capacity to
transfer the title or because of the defective mode of conveyance used.” McManus v.
Kluttz, 165 N.C. App. 564, 568, 599 S.E.2d 438, 443 (2004). So in this case, the seven-
year limitations period would apply only if Defendants could show that any of them
acquired the property under a deed that purported to grant title free of Duke Energy’s
utility easement, although that easement in fact remained. Defendants have not
made that showing; indeed, they concede that Duke Energy holds an easement across
their property, they merely dispute the scope of that easement.
Likewise, the majority correctly holds that the easement is unambiguous and
permits Duke Energy to clear trees within the path of the easement. The terms of the
easement give Duke Energy “the right to clear and keep cleared, at least fifty (50)
feet of the said right of way.” There is no dispute that the redwood tree is within this
fifty-foot right of way. Thus, as a matter of law, the easement permits Duke Energy
to clear the redwood tree.
DUKE ENERGY PROGRESS, INC. V. KANE
DIETZ, J., concurring
Defendants contend that Duke Energy’s absolute authority to cut down any
trees within the right of way is curbed by two separate provisions in the easement.
The first states that Duke Energy “shall have the right to cut and remove on either
side of the said right of way any timber, trees, overhanging branches, or other
obstructions, which do or may endanger the safety or interfere with” the utility lines.
This provision addresses trees not within the right of way, but whose branches extend
into it. That is not the redwood tree in this case; that tree itself is inside the right of
way.
The second provision states that Duke Energy “in entering upon said right of
way . . . shall do so at such place and manner as will do the least injury to the lands.”
This provision protects other property that the company may encounter as it enters
the easement to clear it; it does not limit the company’s “right to clear and keep
cleared” the right of way by cutting down any trees that are within it.
Because the language of the easement unambiguously permits Duke Energy
to remove the redwood tree, I concur in the majority’s opinion.
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