dissenting.
First, I cannot agree with the majority that summary judgment was improperly entered for the defendant Loren A. Tompkins. Even if, as between the parties, the tanks were to be considered as personal property, they were nevertheless “an improvement to real property” within the meaning of N.C.G.S. § 1-50(5), the six-year statute of repose, and any action against Tompkins is barred by that statute. The applicability of the statute is not determined by whether the tanks became “fixtures” or remained, for purposes of contract, personal property. Statutes of repose operate inexorably without regard to the intent or agreement of the parties. Tompkins’ last action with regard to the tanks in question occurred, and indeed those tanks had been removed from the property, more than six years before this action was begun.
More importantly, I believe the majority has erred in its reliance on Masten v. Texas Co., 194 N.C. 540, 140 S.E. 89 (1927), and Broughton v. Standard Oil Company, 201 N.C. 282, 159 S.E. 321 (1931). The holding in both of those cases was that the plaintiff must “allege and prove that his well was polluted by gasoline from the tank owned and maintained by the defendant.” Broughton, 201 N.C. at 288, 159 S.E. at 324 (emphasis added). Plaintiffs’ forecast of evidence fails in this respect. The NRCD report did not fix the source of the contamination. Any fair reading of that report reveals that it merely identifies the three tank locations in question as “potential” sources.
This is not a case where, as in Masten, there is only one possible source of the contamination. Plaintiffs’ forecast of evidence produces only speculation that one or more of three “potential” sources was the cause of the contamination.
*525The majority also errs in its reliance on Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146 (1st Cir. 1989). That case, as the majority concedes, involved an entirely different statute. It, in fact, involved an entirely different concept of liability. There, the plaintiff was attempting to recover “response” costs under a federal statute under which it was not necessary in order to support a recovery that the contamination actually reach the plaintiff’s land. That is not the case under the statutory and common law theories upon which these plaintiffs are proceeding.
Like Judge Wells in his dissent below, I wish to emphasize that, in my opinion:
(1) there remain issues of fact as to the identity of the actors in the alleged escape or leakage of oil or gasoline, and (2) that only those actors responsible for escape or leakage may be liable under the theories advanced in this case. I do not accept the possible inference that a subsequent owner of facilities from which a previous escape or leakage has occurred may be liable for continued seepage resulting from the previous escape or leakage over which he had no control.
Wilson v. McLeod Oil Co., 95 N.C. App. 479, 494, 383 S.E.2d 392, 400 (1989) (Wells, J., dissenting).