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2005-UP-025 - Hill v. CP&L

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Larry Hill and Juliette Hill d/b/a Profile Enterprises, Appellants,

v.

The City of Sumter, Carolina Power and Light Company, Time Warner Entertainment Company, C.B. Askins and Company and Kenneth Simmons Associates, Defendants,

of whom Carolina Power and Light Company is, Respondent.


Appeal From Sumter County
Howard P. King, Circuit Court Judge


Unpublished Opinion No. 2005-UP-025
Submitted December 1, 2004 – Filed January 13, 2005


AFFIRMED


Garryl L. Deas, of Sumter, for Appellants.

Hugh L. Willcox, Jr. and Marian H. Lee, both of Florence, for Respondent.

PER CURIAM:  In this action for trespass and negligence, Larry and Juliette Hill appeal the trial court’s grant of summary judgment to Carolina Power and Light Company (CP&L).  We affirm. [1]  

BACKGROUND

The Hills own a building in downtown Sumter in which they operate a beauty salon.  The property was in the area of the City of Sumter’s renovation project, which as to the Hills involved replacing a wall on their property and relocating electrical equipment from overhead to underground.  CP&L provided, and continues to provide, electrical service to the Hills and was directly involved with the City’s renovation project. 

According to the Hills, they did not consent to the installation of underground wiring or the placement of transformers on their property by CP&L.  Larry Hill said he told CP&L employees to stop digging on his property.  However, a CP&L employee, Joe Bailey, attested Juliette Hill consented to placing two transformers and underground wiring on her property.  Also, according to CP&L, Larry Hill contacted the company and revoked consent as to the transformers but not the underground lines. 

Ultimately, CP&L placed the two transformers on adjacent property and the lines underground.  The underground lines provide electricity to the Hills’ building and an underground junction box at the back of their building provides service to the adjacent property owner.  Essentially, CP&L merely placed underground the formerly above-ground service and did so pursuant to its service regulations. 

The Hills filed suit against the City of Sumter, CP&L, and other renovation project partners.  The Hills alleged negligence and trespass, and, as to the City, they also alleged inverse condemnation.  The trial court granted summary judgment to CP&L and partial summary judgment to the City on any causes of action stemming from the “installation of the underground services by CP&L.” 

LAW/ANALYSIS

The Hills argue the trial court erred in granting summary judgment to CP&L.  We disagree.

Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.  Rule 56(c), SCRCP.  In ruling on a motion for summary judgment, the evidence and reasonable inferences drawn therefrom should be viewed in a light most favorable to the nonmoving party.  Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 439 (2003).  In reviewing the grant of summary judgment, the appellate court applies the same standard as the trial court under Rule 56(c), SCRCP.  Id. at 69, 580 S.E.2d at 438-39.  

I.  Trespass

To support their trespass cause of action, the Hills use the laws of inverse condemnation to suggest CP&L’s actions constituted a taking.  In other words, they argue that because it did not institute an action under the Eminent Domain Procedures Act, CP&L lacked permission and authority to be on their property, and thus trespassed. 

Trespass is any interference with the property owner’s right to the “exclusive, peaceable possession of his property.”  Ravan v. Greenville County, 315 S.C. 447, 463, 434 S.E.2d 296, 306 (Ct. App. 1993) (citations omitted).  “The essence of trespass is the unauthorized entry onto the land of another.”  Id. at 464, 434 S.E.2d at 306 (citations omitted).  “To constitute an actionable trespass, the act must be affirmative, the invasion of the land must be intentional, and the harm caused by the invasion of the land must be the direct result of that invasion.”  Mack v. Edens, 320 S.C. 236, 240, 464 S.E.2d 124, 127 (Ct. App. 1995).

The Hills are customers of CP&L.  CP&L’s service regulations explicitly authorize its entry onto the Hills’ land.  The following is stated in paragraph 2(a) of the regulations:

Company is not obligated to supply electricity to customer unless and until: . . . in cases where it is necessary to cross private property to deliver electricity to Customer, Customer conveys or causes to be conveyed to Company, without cost to Company, a right of way easement, satisfactory to Company, across such private property for the construction, maintenance, and operation of Company’s lines and facilities, necessary to the delivery of electricity by Company to Customer: provided, however, in the absence of a formal conveyance, Company, nevertheless, shall be vested with an easement over Customer’s premises authorizing it to do all things necessary to the construction, maintenance, and operation of its lines and facilities for such purpose.[ [2]

The Hills assert these service regulations do not supersede the laws of inverse condemnation.  CP&L does not assert it is exempt from the laws of condemnation and inverse condemnation.  Rather, it says the service regulations allow it to access its customers’ property to provide service and this permissive access defeats a claim of trespass.  We agree.  Because CP&L was authorized to be on the Hills’ property, no trespass could have occurred. 

II.  Negligence

The Hills also argue their negligence claim against CP&L should have survived summary judgment.  The Hills allege CP&L negligently placed the junction box, preventing them from expanding their building and assert their affidavits were sufficient to create a genuine issue of material fact.  Yet, in their affidavits, the Hills fail to allege any negligent act on the part of CP&L or demand CP&L move the junction box to allow them to expand their property.  Instead, the Hills allege in their affidavits merely that they did not consent to CP&L’s actions.  Moreover, CP&L has offered to move the junction box should the Hills desire to expand.  Because there is an absence of a genuine issue of material fact as to the negligence claim, the court properly granted summary judgment to CP&L.

AFFIRMED.

ANDERSON, STILWELL, and SHORT, JJ., concur.


[1]        We decide this case without oral argument pursuant to Rule 215, SCACR.       

[2]        The Public Service Commission approved CP&L’s service regulations on April 5, 1995 by Order Number 95-837.  The regulations also provide that facilities installed for service of a customer may be used to supply service to others.