dissenting.
I fear that the majority’s restrictive reading of the Haywood Electric Membership Corporation Service Rules and Regulations may have unfortunate consequences. The wire that fell during the February 1998 ice storm had been in place for at least fifty years. Defendant initially entered plaintiff’s property pursuant both to plaintiff’s express invitation and to Section V(A)(4) of the Service Rules and Regulations, which gives defendant the “right of access to [plaintiff’s] premises at all times for the purpose of. . . repairing . . . any or all equipment and facilities which are the property of [defendant].” The issue now before us is whether the actions defendant took thereafter, replacing the wire with one that was heavier and hung substantially lower, erecting new poles, cutting vegetation along the wire’s right-of-way, and so on, resulted in a continuing trespass. The majority’s holding, that summary judgment for plaintiff was properly granted, fails to recognize that the evidence in this case presents a genuine issue of material fact.
It is apparent from the discussion in the majority opinion that the fallen power line was, at best, obsolescent. Defendant used the opportunity presented by the ice storm to erect modern equipment in its place. Section V of the Service Rules and Regulations permits defendant to enter plaintiff’s land for the purposes of “maintaining or *633exchanging . . . equipment and facilities” and of “maintain[ing the] right-of-way.” It is inconceivable that defendant would have signed this agreement if it understood that, by so doing, it would not be permitted at its discretion to update or replace antiquated equipment that was on or crossed over property belonging to plaintiff and others. A fifty-year-old infrastructure would be inefficient, unprofitable, and probably unsafe, benefitting neither plaintiff nor defendant. Nevertheless, under the majority’s holding, a utility provider such as defendant may be discouraged from making improvements to its equipment. On the other hand, it also seems unlikely that, when plaintiff called on defendant to repair the line, he had any expectation that wholesale and intrusive changes would follow. Accordingly, I believe that a genuine issue of material fact exists as to whether defendant’s actions on plaintiff’s property fall within the meaning of “repairing . . . maintaining or exchanging any or all equipment or facilities” as those terms are used in the Service Rules and Regulations. This case should be tried. I respectfully dissent.
Justice PARKER joins in this dissenting opinion.