dissenting.
I respectfully dissent from the majority opinion which affirms the granting of summary judgment in favor of plaintiff on the issue of trespass and I would reverse the order and judgment of the trial court.
In this case, plaintiff has been a member of HEMC since 1966. The property in question is owned by plaintiff and serviced by HEMC. As the majority notes, plaintiff and this property were subject to the Service Rules and Regulations through a written contract which plaintiff signed. In pertinent part, the contract provides:
V. SECTION V — CONDITIONS OF SERVICE
A. General Conditions:
4. The Member agrees that the Cooperative will have right of access to member’s premises at all times for the purpose of . . . repairing, removing, maintaining or exchanging any or all equipment and facilities which are the property of the Cooperative ....
D. Right-of-Way Maintenance:
The Member will grant to the Cooperative, and the Cooperative will maintain right-of-way according to its specifications with the right to cut, trim, and control the growth of trees and shrubbery located within the right-of-way or that may interfere with or threaten to endanger the operation or maintenance of the Cooperative’s line or system ....
(emphasis added).
After an ice storm in February of 1998, plaintiff contacted HEMC and requested it to come onto his property because one of HEMC’s electrical wires had broken and fallen onto plaintiffs garage. The affidavit of Ronnie Allen, an employee of HEMC, stated the following in part:
2. During February of 1998,1 went to Mr. Steve Singleton’s property to put back up electrical lines that had come down as a result of an ice storm. Our records reveal that the transmission line at issue has been in place for over fifty years. In February of 1998 *206there were 178 meters on that line past the property of the Plaintiff. On the date in question those customers were without power.
3. It was obvious to me that the existing copper wire and supporting poles were not adequate since they had failed. We therefore determined to replace the old copper wire with aluminum which is stronger. We further determined that safety concerns dictated that the pole on the top of the ridge just outside the fence to Mr. Singleton’s property needed to be replaced with a stronger pole. Two additional poles were also needed to be installed to provide additional support between the ridges. We placed one between U.S. Highway 276 and the Pigeon River and the other about halfway up the ridge going toward the back of Mr. Singleton’s property. To the best of my knowledge, we only placed two poles on Mr. Singleton’s property.
While repairing and exchanging the wires, HEMC cut about a dozen apple trees which were in the path of the new wire.
“ ‘A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.’ ” Smith v. VonCannon, 283 N.C. 656, 660, 197 S.E.2d 524, 528 (1973) (citations omitted). “One who enters upon the land of another with the consent of the possessor” is not liable in trespass unless he commits a “wrongful act in excess or abuse of his authority to enter.” Id. Consent may be actual, through written contract or an oral agreement, or it can be implied from the circumstances. See Smith, 283 N.C. at 661-62, 197 S.E.2d at 529; Rawls & Assoc. v. Hurst, 144 N.C. App. 286, 292, 550 S.E.2d 219, 224, disc. rev. denied, 354 N.C. 574, 559 S.E.2d 183 (2001) (“Consent may be implied and an apparent consent may be sufficient if it is brought about by the acts of the person in possession of the land. There does not have to be an invitation to enter the land[;] it is sufficient that the possessor’s conduct indicates that he consents to the entry”).
Here, the contract granted a right of access to HEMC to enter the property in question to repair, remove, maintain, or exchange the equipment owned by HEMC. The contract further granted HEMC the right to cut and trim trees and shrubbery which “may interfere with or threaten to endanger the operation or maintenance of the Cooperative’s line or system.” When the line fell, plaintiff requested HEMC to come onto his property to repair the line.
*207In its judgment, the trial court ordered HEMC, among other things, to “remove all power lines.” A significant fact, which seems to have been overlooked here, is that for over fifty years, pursuant to the agreement, a copper utility wire has been located across plaintiff’s property. Only after an ice storm, whereby the wire was broken, did HEMC undertake to replace the copper wire with a stronger aluminum wire and provide further stability by lowering the wire and installing three additional poles to which the new wire was attached.
Regardless of whether there was an easement granted, HEMC had the express permission of plaintiff, both through the contract and from the plaintiff himself, to enter the property to repair and exchange the lines which had fallen. In doing so, HEMC was required, for safety reasons, to place new wire and poles on the property in exchange for the old wire which broke under the ice. For there to be trespass, there must be a determination of whether this action on the part of HEMC was a “wrongful act in excess or abuse of [its] authority.”
The majority upholds the trial court’s granting of summary judgment in favor of plaintiff on the issue of trespass on the basis that “Defendant does not have an express or prescriptive easement for placing utility lines, poles, or other electrical transmission equipment upon Plaintiff’s real property.” I strongly disagree that an act of trespass has been established, as a matter of law, on the basis determined by the trial court and upheld by this Court. I would remand the case to the trial court for a determination of whether HEMC committed an act in excess of the authority granted under the service rules and regulations.
I also note that the majority holds that HEMC failed to preserve the issue of estoppel for review on appeal. HEMC took exception to the granting of summary judgment in favor of plaintiff which I deem would include the grounds of estoppel. I find this issue should be allowed to be asserted on remand.