Converted WP file 060699-1

Appeal by plaintiffs from judgment entered 8 February 2006 by Judge Carl R. Fox in Orange County Superior Court. Heard in the Court of Appeals 23 January 2007.

The Brough Law Firm, by Robert E. Hornik, Jr., for plaintiffs- appellants.

Bryant, Patterson, Covington, Idol & Lewis, P.A., by David O. Lewis, for defendants-appellees.

    STEELMAN, Judge.

    Because plaintiffs' deed explicitly reserved to the developer easements and a buffer zone, as shown on a recorded plat, and because the deed made specific reference to, among other record documents, the declaration of the homeowners association that allowed the association to maintain and preserve “buffer walls” and “landscaped areas,” we hold that defendants' entry onto plaintiffs' land to landscape was under legal right, and the trial court did not err by granting defendants' motion for summary judgment as toplaintiffs' claims for trespass, injunctive relief and declaratory relief.
    In the early 1990s, Black Diamond Properties (“Black Diamond”) developed the Silver Creek Project in Chapel Hill, Orange County, North Carolina. On 25 February 1994, the Declaration of Silver Creek Homeowners Association, Inc. (“SCHAI”) was filed in the Orange County Register of Deeds. On 12 February 1997, Black Diamond recorded the Phase 4 plat for Silver Creek. The next day, Black Diamond granted an easement to the Orange Water and Sewer Authority (“OWASA”), but reserved the right to cultivate and landscape the strip where the easement was located. Black Diamond also implemented a master landscaping plan as part of the original approval process for the subdivision, installing an irrigation system and eleagnus bushes in the buffer and easement areas shown on the recorded plat.
     On 15 May 1998, Timothy Dempsey and Janis Dempsey (“plaintiffs”) acquired title to Lot 61 of the Silver Creek development from Black Diamond.
    On 16 December 1998, Black Diamond recorded a deed of easement to SCHAI, allowing SCHAI to perform “maintenance of landscaping” in the thirty foot buffer. SCHAI maintained the landscaping in the buffer and utility easement areas for several years after plaintiffs purchased Lot 61. SCHAI mowed, trimmed, and spread pine straw, and plaintiffs made no objection to these activities.
    On 19 October 2004, SCHAI held its annual homeowners association meeting, discussing landscaping issues, including theremoval of eleagnus bushes from the buffer and utility easement areas. Plaintiff, Janis Dempsey, attended this meeting. After the meeting, but prior to the commencement of landscaping in the buffer and easement areas, SCHAI provided notice to the homeowners of the work. The president of the homeowners association also sent an email to inform plaintiffs that SCHAI would be “reworking the medians . . . to ensure that [there] is uniformity.”
    On 7 January 2005, Farmhouse Lawn & Landscape, LLC (“Farmhouse”), employed by SCHAI to perform landscape work in the buffer, began removing and replacing eleagnus bushes on Lot 61. Plaintiff, Janis Dempsey, confronted Farmhouse and ordered its workers off of their property. Farmhouse returned to Lot 61 several times over the next twelve days, only to be confronted and ordered off the property by plaintiffs each time.
    On 18 January 2005, plaintiffs filed a verified complaint alleging that SCHAI trespassed on and damaged plaintiffs' property. On 19 January 2005, the trial court entered a temporary restraining order, which directed SCHAI not to remove “any further plantings or landscaping from” plaintiffs' property. On 31 January 2005, the trial court partially granted and partially denied plaintiffs' motion for a preliminary injunction.
    On 30 March 2005, defendants answered by denying plaintiffs' claims and filing a counterclaim, which requested a judgment declaring SCHAI's right to “cultivate, landscape and maintain the buffer area and utility easements[.]” On 24 May 2005, defendants amended their answer, stating further defenses and a secondcounterclaim, that plaintiffs breached an implied-in-fact contract with SCHAI.
    On 22 December 2005, plaintiffs moved for summary judgment, and on 28 December 2005, defendants moved for summary judgment. On 10 February 2006, the trial court denied plaintiffs' motion, allowed defendants' motion, dissolved the preliminary injunction, and held that SCHAI “has the right to cultivate, landscape and maintain the 30 foot Type D Buffer and utility easements affecting Lot 61 of Silver Creek, Phase 4[,]” as such lot, buffer and easements are shown on that certain plat entitled “Silver Creek, Phase 4” and recorded in Plat Book 77 at Page 149 of the Orange County Registry.
    From this order, plaintiffs appeal.
    Plaintiffs contend that the trial court erred in denying their motion for summary judgment, and granting defendants' motion for summary judgment, because defendants had no legal right to enter onto plaintiffs' property and perform landscape maintenance work. We disagree.
    Our standard of review in summary judgment cases, “is whether any genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law.” McGlynn v. Duke Univ., 165 N.C. App. 250, 252, 598 S.E.2d 424, 425 (2004). A defendant may show entitlement to summary judgment by:
        (1) proving that an essential element of the plaintiff's case is non-existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3)showing that the plaintiff cannot surmount an affirmative defense.

Draughon v. Harnett County Bd. of Educ., 158 N.C. App. 705, 708, 582 S.E.2d 343, 345 (2003) (quoting James v. Clark, 118 N.C. App. 178, 181, 454 S.E.2d 826, 828 (1995)).
     “It is elementary that 'trespass is a wrongful invasion of the possession of another.'” Singleton v. Haywood Elec. Membership Corp., 357 N.C. 623, 627, 588 S.E.2d 871, 874 (2003) (quoting State ex rel. Bruton v. Flying “W” Enterprises, Inc., 273 N.C. 399, 415, 160 S.E.2d 482, 493 (1968)). “'[A] claim of trespass requires: (1) possession of the property by plaintiff when the alleged trespass was committed; (2) an unauthorized entry by defendant; and (3) damage to plaintiff.'” Singleton, 357 N.C. at 627, 588 S.E.2d at 874 (quoting Fordham v. Eason, 351 N.C. 151, 153, 521 S.E.2d 701, 703 (1999)). “As an affirmative defense to trespass, a defendant may assert that its entry onto plaintiff's land 'was lawful or under legal right.'” CDC Pineville, LLC v. UDRT of N.C., LLC, 174 N.C. App. 644, 652, 622 S.E.2d 512, 518 (2005) (quoting Singleton, 357 N.C. at 628, 588 S.E.2d at 874).
    In Stanley v. Laughter, 162 N.C. App. 322, 324, 590 S.E.2d 429, 431 (2004), this Court held that the trial court did not err in granting a defendant's motion for directed verdict as to the plaintiffs' claims for trespass, negligence and injury to real property, where defendant “removed the trees and shrubbery from his land and [a] thirty-foot strip of land in order to gain access to [a] sixty-foot wide easement from his 1.46 acre tract.” This Court ruled that because “defendant's deed conveying the 1.46 acre tractspecifically referred to the plat map containing the sixty-foot wide easement, the map became a 'part of the deed as if it were written therein.'” Id. at 327, 590 S.E.2d at 432; see also Kelly v. King, 225 N.C. 709, 716, 36 S.E.2d 220, 224 (1945) (stating that “where lots are sold by reference to a recorded plat, the effect of reference to the plat is to incorporate it in the deed as a part of the description of the land conveyed”). In Stanley, the Court relied on Wofford v. Highway Commission, 263 N.C. 677, 140 S.E.2d 376 (1965), Insurance Co. v. Carolina Beach, 216 N.C. 778, 7 S.E.2d 13 (1940), and Collins v. Land Co., 128 N.C. 416, 418, 39 S.E. 21, 22 (1901), to support their decision. In Collins, our Supreme Court held that:
        [A] map or plat, referred to in a deed, becomes a part of the deed as if it were written therein, and that, therefore, the plan indicated on the plat is to be regarded as a unity, and the purchaser of a lot acquires a right to have all and each of the ways and streets on the plat, or map, kept open.

128 N.C. at 418, 39 S.E. at 22. Although Collins addresses easements as to roadways and dedications for public use, Stanley applies the logic of Collins to easements as to private landowners. See Stanley, 162 N.C. App. at 327, 590 S.E.2d at 432.
    The issue before this Court is whether defendants made a showing that plaintiffs could not surmount defendants' affirmative defense that their entry onto plaintiffs' land was lawful or under legal right. We hold that the rationale of Stanley, 162 N.C. App. 322, 590 S.E.2d 429 is directly applicable to the instant case.
    The Declaration of SCHAI, and the Declaration of Restrictiveand Protective Covenants for Silver Creek, filed on 25 February 1994, stated, in pertinent part, that one of the purposes of the association was to “own, maintain and preserve all . . . easements . . . and all decorative and protective structures (including but not limited to buffer walls), landscaped areas and improvements located thereon[.]” The declaration of the homeowners association was amended on 11 February 1997 to extend to Lots 55-82 in an “Amendment to and Extension of Declaration of Homeowners Association.” Further, the subdivision plat for Silver Creek Subdivision, Phase 4, was filed in the Orange County Register of Deeds on 12 February 1997, which showed an “OWASA Variable Width Waterline Easement[,]” a “Duke Power Variable Width Easement[,]” and a “30' Type D Buffer” at the back of Lot 61 of the Silver Creek development. Note 7 on the plat read as follows: “[t]he Homeowners Association shall be responsible for pedestrian access, buffers and planted island maintenance.”
    On 13 February 1997, Black Diamond Properties, Inc., granted a Deed of Easement to Orange Water and Sewer Authority, which stated, in pertinent part:
        Grantor and its successors-in-interest shall retain the right to cultivate and landscape the strip and to install and maintain other utilities within the boundaries of the strip, provided that such uses shall not interfere with the right of the Grantee to construct, maintain and repair water lines, valves, hydrants and connections within the boundaries of the strip. (emphasis added).

    Plaintiffs acquired title to Lot 61 by a warranty deed, on 15 May 1998, which described the property conveyed as: “[b]eing all ofthat parcel shown as Lot 61, by plat of survey entitled, 'SILVER CREEK, PHASE 4,' of record at Plat Book 77 Page 149, Orange County Registry.” The conveyance was subject to the following exceptions:
        2.     Easements, set-backs and other matters as shown on said recorded plat.

        3.     Declaration of Restrictive and Protective Covenants of record at Book 1219 Page 172, Orange County Registry.

        4.     Declaration of Silver Creek Homeowners Association, Inc., of record at Book 1219 Page 184, Orange County Registry.

        5.     Master Land Use Plan of record at Book 1088 Page 76, Orange County Registry.

        6.     Utility Easement and right-of-way of record.

The alleged trespass of which plaintiffs complain, the landscaping activities of the homeowners association, took place in either the “30' Type D Buffer” or the “OWASA Variable Width Waterline Easement” and “Duke Power Variable Width Easement,” as shown on the recorded plat for the subdivision.
    We conclude that because the 15 May 1998 deed conveying Lot 61 to plaintiffs was subject to “[e]asements, set-backs and other matters as shown on said recorded plat,” making specific reference to the declaration of the homeowners association, the restrictive and protective covenants, the master land use plan and the OWASA easement, defendants' entry onto plaintiffs' land “was lawful or under legal right[,]” CDC Pineville, LLC, 174 N.C. App. at 652, 622 S.E.2d at 518. Defendants thus had an affirmative defense to plaintiffs' suit for trespass.     The evidence in this case does not present a genuine issue of material fact, and therefore, the trial court did not err by granting defendants' motion for summary judgment, denying plaintiffs' motion for summary judgment, and declaring that SCHAI had the right to cultivate, landscape and maintain the 30 foot Type D buffer and utility easements affecting Lot 61 of Silver Creek, Phase 4.
    AFFIRMED.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***