Butterworth v. Morgan

22 So. 3d 473, 2008 Ala. Civ. App. LEXIS 363, 2008 WL 2410227
CourtCourt of Civil Appeals of Alabama
DecidedJune 13, 2008
Docket2070141
StatusPublished
Cited by4 cases

This text of 22 So. 3d 473 (Butterworth v. Morgan) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butterworth v. Morgan, 22 So. 3d 473, 2008 Ala. Civ. App. LEXIS 363, 2008 WL 2410227 (Ala. Ct. App. 2008).

Opinions

BRYAN, Judge.

W.E. Butterworth III appeals from a judgment determining that Thomas F. Morgan and Holley S. Morgan had estab[474]*474lished an easement by prescription over Butterworth’s property. We reverse and remand.

Factual Background and Procedural History

The Morgans own a tract of property, the western boundary of which fronts the eastern shore of Mobile Bay. Butterworth owns a tract of property lying adjacent to and east of the Morgan property. In 1985, R. Michael Thompson and Patricia Thompson acquired a tract of property that now comprises the Morgan property and the Butterworth property. In 1989, the-Thompsons conveyed the Butterworth property by deed to Brett Real Estate, Robinson Development Co., Inc. (“Brett-Robinson”). In that deed, the Thompsons reserved a 12-foot-wide easement (“the deeded easement”) across the southern part of the Butterworth property in order to provide ingress to and egress from the Morgan property. Beginning from the boundary along the southeastern corner of the Morgan property, the deeded easement runs across the southern part of the Butterworth property, continues northeast and east across other properties, and eventually connects with Baldwin County Highway 11. Brett-Robinson subsequently conveyed the Butterworth property to Ray E. Case, and, in 1993, Case conveyed that property to Butterworth.

In 1997, Patricia Thompson became the sole owner of the Morgan property. In 2000, Patricia Thompson conveyed that property to the Morgans. At that time, the Morgans also acquired the deeded easement established in 1989 over the But-terworth property.

A driveway crosses the southern part of both the Morgan property and the Butter-worth property, providing access to the properties from Highway 11. The driveway existed in 1985 when the Thompsons acquired the Morgan property and the Butterworth property, and the driveway has been used since then to access those properties. Portions of the driveway run along portions of the deeded easement. At some points, the driveway does not touch the deeded easement. The driveway generally lies slightly north of the dimensions of the deeded easement.

In 2005, Butterworth sued the Morgans, alleging, among other things, that the Morgans were trespassing on his property by using the driveway. In 2006, the Morgans filed a counterclaim asserting that they had established a prescriptive easement to use the driveway. At trial, the trial court received oral testimony and documentary evidence. The trial court subsequently entered a judgment concluding, among other things, that the Morgans had established a prescriptive easement to use the driveway “for the purposes of ingress, egress, and utility access.” The trial court’s judgment also stated that the Morgans held the prescriptive easement to use the driveway in addition to the deeded easement over the Butterworth property. Butterworth appealed to the supreme court, and that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

Standard of Review

“[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.” Philpot v. State, 843 So.2d 122, 125 (Ala.2002). However, “the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.” Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005). “Questions of law [475]*475are reviewed de novo.” Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

Discussion

“To establish an easement by prescription, the claimant must use the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner. The presumption is that the use is permissive, and the claimant has the burden of proving that the use was adverse to the owner.”

Bull v. Salsman, 435 So.2d 27, 29 (Ala.1983).

On appeal, Butterworth first argues that the trial court erred in finding that the Morgans had established a prescriptive easement to use the driveway because, he says, the Morgans did not satisfy the requisite 20-year period of use. As noted, between 1985 and 1989, the Thomp-sons owned both the Morgan property and the Butterworth property. “ ‘The time for acquiring an easement by prescription does not run while the dominant and ser-vient estates are in the occupation of the same person.’ — Jones on Easements, § 166.” Barker v. Mobile Elec. Co., 173 Ala. 28, 43, 55 So. 364, 368 (1911). See also Burk v. Tyrrell, 212 Ga. 239, 244, 91 S.E.2d 744, 748 (1956) (“Unity of possession of both the dominant and servient tenements is inconsistent with adverse use, and such use could not begin until after a severance of the two estates.”); and Farris Constr. Co. v. 3032 Briarcliff Rd. Assocs. Ltd., 247 Ga. 578, 578, 277 S.E.2d 673, 674 (1981) (stating that adverse use did not begin until the severance in the ownership of two estates).

In this case, the dominant estate — the Morgan property — and servient estate— the Butterworth property — were owned by the Thompsons between 1985 and 1989. In 1989, the Thompsons sold the Butter-worth property. Therefore, regarding use of the driveway, any period of use adverse to the owner of the Butterworth property could not have begun until 1989, less than 20 years before the Morgans claimed a prescriptive easement to use the driveway in 2006. Id. Accordingly, because the required 20-year period of adverse use could not have been satisfied in this case, the trial court erred in concluding that the Morgans had established a prescriptive easement to use the driveway.

The Morgans seem to argue that, regardless of whether they obtained a prescriptive easement, they obtained an easement to use the driveway by “adverse use for the statutory period.” See Kirkland v. Kirkland, 281 Ala. 42, 47, 198 So.2d 771, 774-75 (1967) (stating that an easement may be established by “adverse user for the statutory period”). In its judgment, the trial court did not address whether the Morgans had established an easement to use the driveway by any means other than prescription. However, this court generally “ ‘ “will affirm the judgment appealed from if supported on any valid legal ground.” ’ ” Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 51 (Ala.2003) (quoting Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988)). But see Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., 881 So.2d 1013, 1020 (Ala.2003) (stating exceptions to the general rule that an appellate court will affirm a judgment on any valid legal ground). Therefore, we address the Morgans’ arguments that the trial court’s judgment finding an easement to use the driveway may be affirmed on grounds not stated by the trial court.

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Related

Hall v. Hall
216 So. 3d 1274 (Court of Civil Appeals of Alabama, 2016)
Dickinson v. Suggs
196 So. 3d 1183 (Court of Civil Appeals of Alabama, 2015)
Butterworth v. Morgan
22 So. 3d 478 (Supreme Court of Alabama, 2009)

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Bluebook (online)
22 So. 3d 473, 2008 Ala. Civ. App. LEXIS 363, 2008 WL 2410227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butterworth-v-morgan-alacivapp-2008.