U.S. Supreme Court sinks Lake Norman man’s claims against Duke Energy in land dispute

A longtime Lake Norman waterfront land owner said he will pursue further legal action after the U.S. Supreme Court declined to hear his claim in a long-running land dispute with Duke Energy.

The Dec. 11 decision by the country’s highest court preserves a North Carolina Supreme Court ruling in Duke Energy’s favor.

The dispute between the energy company and Mike Kiser, a Terrell resident, stems from Kiser not obtaining a permit for a 17 1/2-foot retaining wall he built in 2015 on lake-bed property that resurfaced during a drought. He also added infill material behind that wall.

Kiser contends he didn’t need a permit because it’s his land, but in the past he has paid permit fees to build smaller walls. Duke disagreed and issued a “stop work” directive.

The seven-year legal dispute involves a 280-acre flood easement Duke Energy bought for $100 an acre from Kiser’s grandparents, B.L. and Zula Kiser, in 1961. Duke Energy, then called Duke Power Company, created the lake from 1959 to 1963, when it flooded land with water from the Catawba River to create Lake Norman.

Duke manages Lake Norman and its other Catawba River lakes under federal license.

Kiser owns the lake bed of the 280-acre submerged tract that he and his brothers inherited after their father died in 2016.

According to court documents, the North Carolina Department of Environmental Quality told Kiser the unauthorized construction would affect the waters of Lake Norman.

U.S. Supreme Court decision

The U.S. Supreme Court declining to hear his case marked the third time a court denied Kiser a jury trial, he told The Charlotte Observer. He intends to seek legal relief through the U.S. Attorney’s office in Charlotte.

He sought a verdict from a jury “because that’s how our legal system is supposed to work,” he said.

“It’s a sad day in America when Duke Energy can strip me of the inheritance my brothers and I received from my dad without the opportunity to appear before a jury of my peers,” Kiser told the Observer.

In response to Kiser’s comment, Duke Energy said in a statement to the Observer: “At all times, the Kisers have retained and continue to retain ownership of the land, subject to Duke Energy’s easement restrictions — land rights the company paid the Kiser family for. To say otherwise is a mischaracterization of the facts.”

The company said it was pleased with the U.S. Supreme Court decision, according to the statement by Duke Energy spokesperson Caroline Portillo.

“In 1961, Duke Energy purchased perpetual easement rights for the 280.4 acres of land from Mr. Kiser’s grandparents for a significant sum of money,” according to the statement.

“Per the language of the purchased easement, Duke Energy was granted absolute water rights and the broad ability to ‘treat the land in any manner deemed necessary or desirable by Duke.’ The Kisers continue to retain ownership of the land, subject to those easement restrictions.”

Law 360 first reported the U.S. Supreme Court decision.

What the courts decided

In the seven years it took for the case to make its way through the legal system, only the North Carolina Court of Appeals ruled in Kiser’s favor.

The case started in 2017 in Catawba County Superior Court, where a judge two years later ruled in Duke Energy’s favor.

The Court of Appeals agreed unanimously with Kiser that Duke Energy allowed piers for other homeowners on the 280-acre tract without compensation for the use of the Kisers’ property. That represented a “taking” of their land, according to the ruling.

The N.C. Supreme Court reversed the Courts of Appeals ruling.

”Duke acted within the scope of its broad authority under the easement by allowing the third-party homeowners to build docks, piers, and other structures over and into the submerged land without the Kisers’ consent,” according to the N.C. Supreme Court opinion written by Chief Justice Paul Newby.

In its statement to the Observer on Wednesday, the energy company said “multiple courts, including the N.C. Supreme Court, have agreed that the easement purchased by Duke Energy enables the company to implement and enforce its Shoreline Management Plan, which includes the ability to permit docks, retaining walls and other structures.

“The Shoreline Management Plan applies to the entire lake bed of Lake Norman,” according to the statement. “It’s designed to provide public and private access to the lake while preserving its natural and cultural resources and is an important requirement of our federally enforced Federal Energy Regulatory Commission license, which allows us to operate the Catawba-Wateree Hydro Project.

“The Project generates electricity for our customers, provides drinking water for over 2 million people in the surrounding communities and facilitates millions of recreational visits each year, among other things,” Duke Energy said.

Kiser’s attorney, Ty McTier of Charlotte, said the ruling allows such easements to turn into outright ownership.

“It not only expanded the nature of easements to a virtually unlimited application, but also transferred title where none had taken place before,” McTier said in an email to the Observer.

Retaining wall dispute

In 1998, Kiser built a small retaining wall after he paid Duke Energy $200 for a permit that allowed him to install it.

The court case began, though, after some of the Kisers’ submerged land surfaced during a drought in 2015.

Without seeking a permit from Duke Energy, Kiser built another retaining wall, this one 17 1/2-foot, on the resurfaced property and used backfill to extend his lot.

The old wall wasn’t tall enough and also had begun to deteriorate, he said.

He said Duke came out with a cease and desist order, claiming that he’d violated the easement agreement. Duke threatened legal action if he didn’t take the wall down, Kiser said.

By doing so, he said, Duke was acting as the owner of his property.

Kiser responded to Duke: “If I’m in violation of the easement agreement, so are all of the people that have docks and houses on my property. So why aren’t you asking them to take those structures out?”

That started the legal battle over who really owns the property, he said.

In 2017, Duke Energy sued Kiser and his wife, Robin, in Catawba County Superior Court after the Kisers ignored multiple requests from the company and the N.C. DEQ to remove the wall and the fill material, according to the court records.

In court, he challenged Duke Energy’s authority to demand the wall’s removal and to issue permits for other homeowners to build and maintain docks along his submerged property.

Kiser told the Observer that since he owns the land he shouldn’t have had to get Duke Energy’s approval to add the second retaining wall.

The Kisers also brought trespass claims against homeowners whom Duke Energy permitted to build piers over the decades, according to court documents.

What the easement says

Duke Energy argued in court that the original easement gave the company a broader say over the 280 submerged acres.

Newby, the chief justice, agreed, writing in his April 2023 N.C. Supreme Court opinion:

“The plain language of the easement grants Duke ‘absolute water rights’ to ‘treat (the land) in any manner (it) deem(s) necessary or desirable.’”

“Because the easement’s plain language is clear and unambiguous and Duke’s actions are encompassed within the broad grant of authority, Duke properly allowed third-party homeowners to build structures over and into the submerged property and use the lake in a recreational manner,” Newby wrote.

In defending the company’s actions in the case, Duke Energy spokesperson Portillo pointed to the N.C. Supreme Court ruling.

She also said what Duke paid for the 1961 easement would equal $570,000 today.

Kiser Island lots sold to other homeowners

Kiser’s grandparents took ownership of the land in 1946, Kiser said, and his family has been in North Carolina since the 1700s.

According to court records, Kiser’s grandparents kept a stretch of their original landholdings that became an island — Kiser Island — that’s surrounded by the 280.4-acre submerged parcel involved in the easement dispute.

Between 1964 and 2015, Kiser’s grandparents subdivided Kiser Island into residential waterfront lots that were sold to other homeowners, court records show.

McTier said by upholding the Catawba County Superior Court judge’s ruling, the N.C. Supreme Court decision essentially ousted the family from any right or ownership to the 280 acres.

Catawba County Senior Judge Nathaniel Poovey wrote:

“Defendants and their successors in interest are ousted from any real property interest or claim, or claim of trespass or for rents in the Lots ...”

McTier said: “The opinion is unique in many ways and is truly a new legal concept that doesn’t incorporate any prior court precedent ... Private property can (now) be transferred contrary to the parties’ intent and language of the easements as a whole.

“These types of transfers can (now) also happen without compensation and make every landowner who has an easement on their land vulnerable to a judge’s interpretation.”

McTier said the opinion will “undoubtedly create more litigation as the uncertainty of what an easement means is now limitless.”