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Encroachment Power Play
by Ron Davis

A power company has forced the owners of a North Carolina shopping center to allow removal of “encroachments” that interfere with the company’s right of way at the center.

The shopping center is Callabridge Landing, in suburban Charlotte, and the power company–Duke Energy Corp.–clashed with the center’s owners over the right of way in a 199-foot-wide strip of land that Duke purchased in 1977. That easement purchase permitted Duke “to clear the strip and to keep the strip clear of any and all structures, trees, fire hazards and other objects of any nature.”

But the owner of the property retained all other rights “not inconsistent with the rights therein contained to Duke Energy.” That gray area of the easement resulted in a lawsuit when the center’s owners constructed a concrete-and-stone “Callabridge Landing” sign, a pole, and a wire fence on the strip, then also planted several trees there.

Duke pointed out that the easement states that the company has the right to remove the items that the center’s owners place on the Duke strip. In response, the center’s owners argued that they are free to use their land so long as the use does not interfere with Duke’s transmission of electricity.

The center’s owners further contended that because the planting of trees, the constructing of monument signs, and the erecting of fences are not mentioned in the prohibitions for the strip, those trees and structures there must be left in place.

In a split decision, a North Carolina appellate court, in ruling in favor of the power company, explained, “The use of the land–that is, the planting of trees and placement of other structures within the dimensions of the easement–is inconsistent with the enumerated right of the power company to keep the land clear of such trees and structures. It would be nonsensical to...permit the planting of trees and placement of other structures on the power company’s right of way, and simultaneously read the same contractual language to allow Duke Energy to clear these same objects.”

In a dissenting opinion, however, one judge noted that the owners of the shopping center concede that if the objects they place on the Duke right of way ever do interfere with the transmission of electricity, Duke has the authority to immediately remove them. Until then, the judge added, the owners should be allowed to place objects on the land as they see fit. (Duke Energy Corp. v. Malcolm, 630 S.E.2d 693])

Decision: July 2006 Published: July 2006



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