Cooper v. Ziegler

193 So. 3d 722, 2015 Ala. LEXIS 112, 2015 WL 5511322
CourtSupreme Court of Alabama
DecidedSeptember 18, 2015
Docket1140303
StatusPublished
Cited by1 cases

This text of 193 So. 3d 722 (Cooper v. Ziegler) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cooper v. Ziegler, 193 So. 3d 722, 2015 Ala. LEXIS 112, 2015 WL 5511322 (Ala. 2015).

Opinion

BOLIN, Justice.

John R. Cooper, in his official capacity as director of the Alabama Department of Transportation (“ALDOT”), appeals from the Montgomery Circuit Court’s December 16, 2014, order enjoining him from prohibiting Eddie Ziegler, Lisa Ziegler Player, Jennifer Ziegler Cousins, Angela Gay Ziegler Bracknell, and Cathy Donaldson (hereinafter sometimes referred to collectively as “the Zieglers”)* from obtaining legal permits to build seven to eight houses on the Zieglers’ property or from otherwise interfering with the Zieglers’ plans and likewise enjoining Cooper from withholding consent for the building of those houses in the event the .Zieglers obtain the required permits. Because we find that Cooper is entitled to sovereign immunity, we reverse and remand..

I. Facts and Procedural History

This appeal involves real property located in Montgomery County on what is referred to by the parties as the Interstate 65 Peninsula (“the peninsula”), which runs underneath and alongside a portion of Interstate 65; the peninsula lies in the> floodplain of the Alabama River, In 1971, AL-DOT condemned approximately 290 acres of the peninsula for the construction of a portion of the Interstate 65- structure — the roadway, 10 relief bridges, and the Alabama River Bridge. The condemnation order, which was entered by the Montgomery County Probate Court on February 2, 1971, also included a protective easement, perpetual in nature, in favor of ALDOT on approximately 1,700 acres of the peninsula, the purpose of which was to protect the Interstate 65 structure from future flood-damage risks. According to the record, the Interstate 65 structure was strategically placed on the peninsula based bn the records from a flood in 1961; the last major flood was in 1990. There are 15 tracts, of property over which the Interstate 65 structure crosses that are encumbered by the easement. The Zieglers and their predecessors in title have owned, .for over 60 years, one of those tracts of property, which consists of approximately 480 [724]*724acres. Pursuant to the 1971 condemnation order, the Zieglers’ predecessors in title were compensated by ALDOT for the easement over their property. Section I of the easement describes specific activities that ALDOT has the right to 'prohibit where deemed necessary to protect the integrity of the Interstate 65 structure; section II lists the purposes for the easement; and section III describes those rights that are expressly reserved in the landowners, including the right of immediate reverter in the event a specific flood-control project comes into existence that would render the rights and easements unnecessary for the protection of the Interstate 65 structure. The easement reads as follows:

“I. A PERPETUAL AND ASSIGNABLE EASEMENT in, over, upon and across the property hereinafter described for the establishment and use as a restricted area in, on, over and across Tract No. 8 of Project No. 1-65-1(49), Montgomery County, Alabama, which property is further described more particularly hereinafter, consisting of the right to prohibit where deemed necessary by [ALDOT] to protect said interstate highway in, on, over, upon, under and across said property:
“(1) The filling, excavation and!or removal of soil, including sand and gravel, or minerals which may exist on or below the surface of the ground, except minerals such as oil or gas which may be removed by drilling. Exploratory investigation is prohibited except upon written permission of [ALDOT].
“(2) Any act or use of the land that would result in the destruction and/or removal of trees, foliage and plants of natural growth except upon the written permission of [ALDOT], and except as hereinafter provided, and also:
“The right to prohibit in, on, over, upon, under and across said property:
“(3) The erection of billboards, signs or any form of commercial advertising.
“(4) The establishment of junkyards as defined in Title 23, Sec. 64(7), Code of Alabama, or the dumping of trash, rubbish, garbage, junk, offal, and unsightly or offensive materials in the area except by written permission of [ALDOT].
“II. A perpetual and assignable easement in, over and across the property hereinafter described for the following purposes:
“The right to post signs indicating the nature and extent of [ALDOT’s] control; the reasonable right of ingress over and across said lands for the purpose of exercising the rights set forth herein: the right to plant, locate, move or remove, destroy or relocate any and all trees, foliage or plants of natural growth or nursery stock wherever located to any location, necessary for the preservation and protection of the highway designated as Interstate Highway 65, except as hereinafter provided, the right to place stones, rocks, rip rap, or other material providing slope protection or any other protection necessary for the preservation and protection of a highway designated as Interstate Highway 65.
“HI. The rights herein acquired by [ALDOT] are subject and conditioned to the following rights and interests which are expressly reserved in the landowners, their heirs, successors and assigns:
“(1) It is expressly reserved to the landowners herein, their heirs and assigns, the right to use for agricultural and farming purposes, including pasture and crop cultivation, all areas tvhich are shown as open land, and so designated on the attached maps which are filed herewith and made a part of these proceedings.
[725]*725“(2) It is expressly reserved to the landowners, their heirs and assigns, the right to continue to use, to replace at their present location and to maintain at their present location all structures which are now in place.
“(3) It is expressly reserved to the landowners herein, their heirs and assigns, all such rights and privileges as may be used without interfering or abridging the rights and easements hereby acquired by [ALDOT],
“(4) The right of immediate reverter of all rights and interests being acquired (except those acquired in Paragraph 1(3) and (4) above, should flood control projects of such nature and magnitude be constructed as to render the rights and easements herein acquired unnecessary for the protection of the highway right-of-way knoivn as Interstate Highway 65 and all improvements thereon, from those minor and major floods such as might occur in the future.”

(Emphasis added.)

The Zieglers are desirous of building on their property seven to eight family houses constructed on pilings,, and they requested Cooper’s written permission in order to do so. Cooper, however, denied their requests because building houses on the peninsula would require, among other things, digging, cutting trees, and removing soil— activities that, according to the easement, Cooper has the right to prohibit when deemed necessary to protect the Interstate 65 structure from future flood risks.

On June 19, 2014, the Zieglers sued Cooper in his official capacity as director

of ALDOT.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

McConico v. Patterson
204 So. 3d 409 (Court of Civil Appeals of Alabama, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
193 So. 3d 722, 2015 Ala. LEXIS 112, 2015 WL 5511322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-ziegler-ala-2015.