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Unpublished Opinion No. 2005-UP-025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.