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Issue  259  Article  411
Published:  1/1/2020

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Duke Energy Progress, Inc. v. Kane (COA18-239) 4/16/2019
Color of Title Limitation on Utility Easement

Chris Burti, Vice President and Senior Legal Counsel

This opinion affirmed a summary judgment order enforcing the utility's right to cut trees within the easement. Two judges concurred in the majority opinion and the third concurred in affirming in a separate opinion. At issue were two trees within the right of way that the property owners had refused the utility permission to enter and cut. Most of the facts were essentially undisputed leaving the court to construe the law to be applied.

The defendant landowners contended that the seven-year statute of limitations for color of title applied. The majority opinion  held that the "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." We believe that the concurring opinion offers a better and more useful conclusion where it states:

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.

It should be noted that the statute of limitations argument may have been a legal issue red herring as the clear authority of the utility to cut trees was recognized in the concurring opinion. Since the contract clearly contemplated that trees would grow naturally or planted, that they would need to be cut or trimmed and provision was made therefore, it seems clear that their existence in the easement would not be a violation of the terms of the agreement, but rather that the "injury to the incorporeal hereditament" is the property owner's refusal to allow entry to which time only would the limitation period begin to run.

The defendants also raised the issue of whether it was necessary to cut the trees down arguing that the scope of the easement was limited to those acts which would cause the "least injury" to defendants' residential property. The majority held that "the condition...indicates that plaintiff's right is not absolute; and thereby, the removal must be justified and reasonable." The majority then reviewed the trial court's findings and conclusions and as they were not disputed, affirmed.

Again, we think the concurring opinion more clearly states the law applied to the facts in the case and we set it out fully as it is concise:

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 matter of law, the easement permits Duke Energy to clear the redwood tree. 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.

Unfortunately, the majority opinion will likely give rise to further litigation. Most modern utility easements are drafted to clearly evidence the utility's right to keep the easement clear solely within the discretion of the utility. This is particularly important with regard to electrical utility easements which must be maintained by the utility in conformance with state and national safety codes. The concurring opinion seems to implicitly recognize this and had it been the voice of the court, would preclude quibbling on a case by case basis as to whether a utility's exercise of its rights and responsibility involved the "least injury" to a defendants' residential property.

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