Defendants' land is located in the country and is, therefore, not served by a county sewer system. Defendants subsequently learned of a way by which they could pump their sewage from their land to Gary Webb's adjoining property where it would then perk and thereby meet health department standards. On 19 January 1990, defendants obtained an easement from Webb, which permitted the installation of a sewer line under Webb's land and maintenance of holding tanks and a sewage absorption field on his land to dispose of defendants' sewage. This easement is recorded in Deed Book 906 at page 894 of the Harnett County Registry. Defendants contend that Evander Moore told Betty Leveris to put the pipe down, and assured her that there would be no trouble.
Plaintiffs deny that they ever gave consent for defendants to lay a sewer line on their property.
On 27 March 1990, the Harnett County Health Department issued an improvement permit that allowed defendants to install a septic tank and a pumping station on the land to pump defendants' sewage from defendants' land through an underground sewer line located in a legally recorded easement to land that would perk. Plaintiffs filed this action on 28 October 1994, alleging that defendants were trespassing on plaintiffs' property with a four inch sanitary sewer line laid for the purpose of disposing of raw sewage from defendants' residence onto the property of Gary Webb. Plaintiffs sought an injunction restraining defendants from further trespass on their property, and a mandatory injunction ordering defendants to remove the sewer line from plaintiffs' land. Defendants filed an answer to plaintiffs' complaint, denying that they were trespassing on plaintiffs' property, and alleging as an affirmative defense, that their sewer line was installed on plaintiffs' property under a claim of right. Thereafter, on 13 January 1997, plaintiffs filed a motion for summary judgment.