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 -2- DUKE ENERGY PROGRESS V. KANE 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 ...
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