Opinion
NO. COA05-755.
Filed June 20, 2006.
1. Easements — consent judgment — landowners' placement of trees and structures — dominant tenant's removal right
Easement rights contained in a consent judgment entered by plaintiff electric power company and defendant landowners' predecessors in interest gave the power company the right to have trees and structures placed by the landowners in the right-of-way removed where the consent judgment granted the power company the right to clear the right-of-way and to keep it clear of any and all structures and trees, notwithstanding the consent judgment also stated that the predecessors in interest reserved all other rights not inconsistent with the easement rights granted to the power company, since the reserved rights are restricted by the enumerated rights granted to the dominant tenant in the consent judgment.
2. Appeal and Error — preservation of issues — failure to cite authority
Although defendants contend the trial court erred by granting injunctive relief that was inconsistent with the consent judgment, this assignment of error is dismissed because defendant's argument is not supported by relevant authority as required by N.C. R. App. P. 28(b)(6).
3. Injunctions — permission required before placing objects within right-of-way
The trial court erred by enjoining defendants from placing other structures, trees, fire hazards and other objects of any nature within the right-of-way without plaintiffs permission insofar as the judgment requires defendants to obtain plaintiff's permission before placing objects within the right-of-way.
4. Appeal and Error — preservation of issues — costs — premature argument
Although defendants contend the trial court erred by awarding plaintiff costs in this action, this argument is premature because the trial court has not yet entered a specific order providing the nature or amount of costs awarded to plaintiff.
5. Appeal and Error — preservation of issues — no merit
Defendants' remaining assignments of error have not been preserved for appeal or are without merit.
Judge ELMORE dissenting.
Appeal by defendants from judgment entered 14 December 2004 by Judge James E. Lanning in Mecklenburg County Superior Court. Heard in the Court of Appeals 11 January 2006.
Parker, Poe, Adams Bernstein, LLP, by Irvin W. Hankins, III and John W. Francisco, for plaintiff-appellee. Kilpatrick Stockton, LLP, by Noelle E. Wooten, for defendant-appellant Callabridge. James E. Scarbrough, for defendant-appellant Malcolm.
Wendell Corey Malcolm and Callabridge/Granite, LLC (defendants) appeal from the trial court's entry of summary judgment in favor of plaintiff Duke Energy Corporation. We affirm in part and reverse in part.
The pertinent facts may be summarized as follows: Defendants own a 48 acre tract of land located at the intersection of State Highway 16 and Mount Holly-Huntersville Road in Mecklenburg County (the property). Plaintiff purchased a 199 foot-wide easement across the property from the defendants' predecessor in interest in 1977. The agreement containing the easement was subsequently set forth in a consent judgment on 25 August 1977. The consent judgment grants plaintiff, inter alia, "[t]he right for [Duke Energy] at any time to clear said strip and to keep said strip clear of any and all structures, trees, fire hazards and other objects of any nature." However, the consent judgment reserves to the defendants all other rights "not inconsistent with the rights therein contained to Duke Energy."
Callabridge purchased the property on 25 August 2000 subject to the plaintiffs easement. On 31 May 2002, Callabridge sold a portion of the land to defendant Wendell Corey Malcolm. Sometime before 24 July 2002, Callabridge developed the land into a shopping center complex and constructed a concrete and stone "Callabridge Landing" sign as well as a pole and single wire fence on the easement. Callabridge also planted several Crepe Myrtle trees within the dimensions of the easement.
Plaintiff objected to the placement of the trees and other structures on its easement and, as a result, filed the subject action. Plaintiff contends that the consent judgment containing its easement rights required that the land be clear of the encroachments that Callabridge placed within the dimensions of the easement. Therefore, plaintiff maintains, defendants must remove the encroachments and refrain from further placement of impermissible structures within the boundaries of its easement. Callabridge contends that the transfer to plaintiff constituted an easement, not a transfer in fee simple, and that as long as the trees and structures do not interfere with Duke's ability to transmit electricity, it is permitted to utilize its land in a manner consistent with its reserved rights under the terms of the 1977 consent judgment.
The trial court entered summary judgment in favor of plaintiff on 14 December 2004, concluding that there was no genuine issue of material fact, reasoning that the language of the consent judgment granted plaintiff the unambiguous right to clear the right of way of any trees, structures, fire hazards and other objects of any nature. The trial court also concluded that the plaintiff's right to clear applied to the encroachments at issue in the instant case. Defendants appeal.
On appeal, defendants contend that the trial court erred in granting summary judgment for the plaintiff because there exist genuine issues of material fact. Specifically, the defendants contend that there exists a material factual dispute of whether defendant's use of the land interfered with plaintiff's rights under the easement. We disagree.
Under N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005), summary judgment is proper when "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 and that any party is entitled to a judgment as a matter of law." Thus, "the standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Further, the evidence presented by the parties must be viewed in the light most favorable to the non-movant." Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998) (citation omitted).
Consent judgments delineating easement rights are foremost contracts. See Hemric v. Groce, 154 N.C. App. 393, 397, 572 S.E.2d 254, 257 (2002) ("A consent judgment is a contract between the parties entered upon the record with the sanction of the trial court and is enforceable by means of an action for breach of contract[.]")-In interpreting a contract, our courts adhere to the following central principles:
"[T]he goal of construction is to arrive at the intent of the parties when the [contract] was [written]. Where a [contract] defines a term, that definition is to be used. If no definition is given, non-technical words are to be given their meaning in ordinary speech, unless the context clearly indicates another meaning was intended. The various terms of the [contract] are to be harmoniously construed, and if possible, every word and every provision is to be given effect. . . . [I]f the meaning of the [contract] is clear and only one reasonable interpretation exists, the 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."
Gaston County Dyeing Machine Co. v. Northfield Ins. Co., 351 N.C. 293, 299-300, 524 S.E.2d 558, 563 (2000) (quoting Woods v. Nationwide Mut. Ins. Co., 295 N.C. 500, 505-06, 246 S.E.2d 773, 777 (1978)).
The trial court's determination of whether the language in a consent judgment is ambiguous is a question of law and therefore our review of that determination is de novo. Bicket v. McLean Securities, Inc., 124 N.C. App. 548, 553, 478 S.E.2d 518, 521 (1996). "An ambiguity exists where the language of a contract is fairly and reasonably susceptible to either of the constructions asserted by the parties." Glover v. First Union National Bank, 109 N.C. App. 451, 456, 428 S.E.2d 206, 209 (1993).
This Court in Hanner v. Power Co., 34 N.C. App. 737, 737, 239 S.E.2d 594, 595 (1977), held that the enumerated right granted to the defendant "to keep said strip of land free and clear of any or all structures, trees and other objects of any nature . . ." was unambiguous. In Hanner, plaintiffs owned a track of land that was servient to an easement held by the defendant. Id. In addition, the plaintiff had the reserved right to grow "such crops and maintain such fences as may not interfere with the use of said right of way by the Power Company[.]" Id. at 738, 239 S.E.2d at 595. After defendant removed trees that plaintiff had planted within its easement, the plaintiff filed suit against defendant for the alleged unauthorized cutting of the trees. Id. The trial court granted, and this Court later affirmed, summary judgment in favor of defendants. Id. at 738-39, 239 S.E.2d at 595. The Hanner Court held that, as a matter of law, such contractual language was unambiguous. Id. In so holding, the Hanner Court reasoned that plaintiff's right to grow crops was specifically limited by the contractual provision that gave the defendant the express right to clear trees and other objects from its right of way. Id.
We next turn to an application of the foregoing principles to the instant case. The 1977 consent judgment between plantiff and Dunn Development Corporation, predecessors in interest to defendants, awarded the following enumerated rights to the plaintiff:
The right to enter said strip of land . . . and the right, within the limits of said strip of land to erect, construct, reconstruct, replace, maintain and use towers, poles, wires, lines, cables, and all necessary and proper foundations, footings, crossarms and other appliances and fixtures for the purpose of transmitting electric power and for [Duke's] communication purposes, together with a right of way on, along, and in all of the said strip of land; together with the right for [Duke] at any time to make relocations, changes, renewals, substitutions, and additions on or to said structures within said strip; the right for [Duke] at any time to clear said strip and keep said strip clear of any and all structures, trees, fire hazards and other objects of any nature[.] (emphasis added).
Duke also acquired the right to trim and cut trees outside of the easement that might endanger its equipment, as well as the right of ingress and egress. However, the easement reserved to defendants:
all other rights to said strip of land not inconsistent with the rights and easements herein contained, but [Callabridge] cannot: (1) construct streets, roads, water lines . . . across said strip at an angle of less than forty-five (45) degrees . . . nor closer than 20 feet to any structures placed upon the right of way by [Duke] . . . (2) maintain fences that are not safely removed from [Duke's] structures . . . (3) dig wells on said strip; (4) place . . . underground storage tanks on said strip; (5) use said strip for burial grounds; (6) interfere with or endanger the construction, operation, or maintenance of [Duke's] facilities, (emphasis added).
Here, we are guided by the principles articulated in Hanner. The defendant's reserved power to retain all other rights "not inconsistent with the rights therein granted" is limited by plaintiff's "right . . . at any time to clear said strip and to keep said strip clear of any and all structures, trees, fire hazards and other objects of any nature." Whether the general reserved rights under the consent judgment are narrowly defined as in Hanner, or are more broadly etched as in the instant case, the reserved rights are restricted by the enumerated rights granted to the dominant tenant in accordance with the easement.
Defendants nevertheless argue that they are free to make use of their land so long as the use does not interfere with plaintiff's transmission of electricity pursuant to the reasoning set forth in Power Co. v. Rogers, 271 N.C. 318, 156 S.E.2d 244 (1967), and Light Co. v. Bowman, 229 N.C. 682, 51 S.E.2d 191 (1949). We disagree.
The gravamen of the line of cases cited by the defendants, which involved condemnation actions, is that:
the general rule in regard to land condemned for use for electric power transmission lines seems to be that the landowner has the right to make use of the strip of land condemned in any manner which does not conflict with the rights of the Power Company, and which is not inconsistent with the use of the land for the purposes for which condemnation was allowed, and which does not interfere with the free exercise of the easement acquired. (emphasis added).
Light Co., 229 N.C. at 687, 51 S.E.2d at 195.
In other words, the servient tenant may make any use of the land so long as the use (1) does not conflict with the power company's rights, and (2) is consistent with the purpose for which the easement was granted, and (3) does not interfere with the dominant tenant's free exercise of the easement. These requirements are conjunctive. and the landowner must meet all three conditions in order to use the land subject to an easement in the manner it chooses.
In the instant case, the defendants' use of the land, i.e. the planting of trees and placement of other structures within the dimensions of the easement, is necessarily inconsistent with the enumerated right of the power company to keep the land clear of such trees and structures. It would be nonsensical to apply the consent judgment in a way that would permit defendants to plant trees and place other structures on the plaintiff's right of way, and simultaneously read the same contractual language to allow plaintiff to clear these same objects.
Defendants also argue that because planting trees, constructing monument signs and erecting fences are not mentioned in the prohibitions in the consent judgment that apply to them, they are allowed to leave the trees and structures in place. See Power Co., 271 N.C. at 320, 156 S.E.2d at 248 (subject to the prohibitions specifically enumerated in the petition, the land owner may make any use of the land which will not interfere with the power company's transmission of electricity). We disagree.
The listed prohibitions in the consent judgment cannot fairly be seen as an exhaustive list of impermissible actions for defendants to undertake. Rather, while the initial reserved rights provision, which reserves all other rights "[n]ot inconsistent with the rights and easements therein contained" describes the defendants' retained bundle of rights, it simultaneously serves as a limitation of their rights. Stated differently, the reserved rights provision specifically prohibits the defendants from taking any action which is incompatible with the express right of the plaintiff to "at any time to clear said strip and to keep said strip clear of any and all structures, trees, fire hazards and other objects of any nature."
The trial court properly concluded that the language of the consent judgment was unambiguous and that plaintiff was entitled to have the trees and structures that defendants placed on its easement removed because plaintiff was exercising its enumerated right pursuant to the consent judgment.
Defendants next contend that the trial court erred in granting injunctive relief that is inconsistent with the consent judgment. In its 14 December 2004 judgment, the trial court ordered the following injunctive relief:
22. The Defendant Callabridge is hereby ordered to completely remove the Encroachments from the Right-of-Way across the Property within thirty (30) days from the date of entry of this Judgment.
23. The Defendant Malcolm is hereby ordered to completely remove the Stone Monument Sign from the Right-of-Way across the Outparcel within thirty (30) days from the date of entry of this Judgment.
24. The Defendants, and their respective agents, members, officers, directors, shareholders and employees, are hereby enjoined from placing any other structures, trees, fire hazards or objects of any nature within the Right-of-Way without Duke Energy's permission and from otherwise violating the Consent Judgment, so long as Duke Energy continues to use the Right-of-Way for the purpose as set forth in the Consent Judgment.
On appeal, defendants contend that the trial court erred in ordering the defendants to remove the encroachments from the right of way. However, because defendant's argument in this regard is not supported by relevant authorities, we do not address it. See N.C.R. App. P. 28(b)(6) (providing that assignments of error not set out in the appellant's brief, or in support of which no authority is cited will be taken as abandoned). In addition, defendants argue that the trial court erred by enjoining defendants from "placing other structures, trees, fire hazards and other objects of any nature within the Right-of-Way without plaintiff's permission[.]" We agree with defendants' contention insofar as the judgment requires defendants to obtain plaintiff's permission before placing objects within the right-of-way, and we reverse to this extent.
The defendants next contend that the trial court erred in awarding the plaintiff costs in this action. However, this argument is premature because the trial court has not yet entered a specific order providing the nature or amount of costs awarded to plaintiff.
We have evaluated defendants' remaining assignments of error and conclude that they have not been preserved for appeal or are without merit.
Affirmed in part, reversed in part.
Judge McCullough concurs.
Judge ELMORE dissents in a separate opinion.