Finley v. McCoy

204 So. 3d 394, 2016 Ala. Civ. App. LEXIS 57
CourtCourt of Civil Appeals of Alabama
DecidedMarch 11, 2016
Docket2150031
StatusPublished

This text of 204 So. 3d 394 (Finley v. McCoy) 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
Finley v. McCoy, 204 So. 3d 394, 2016 Ala. Civ. App. LEXIS 57 (Ala. Ct. App. 2016).

Opinion

MOORE, Judge.

Glenda N. Finley appeals from a judgment entered by the Etowah Circuit Court (“the circuit court”) awarding Matthew McCoy a 30-foot right-of-way over her property located in Etowah County (“the Finley property”) and finding that Matthew had an easement by prescription and an easement by implication over the Finley property. We affirm the trial court’s judgment.

Procedural History

After Matthew filed a petition in the Etowah Probate Court (“the probate court”) seeking condemnation of a right-of-way over the Finley property at a location referred to as “the driveway,” the probate court entered a judgment awarding Matthew a right-of-way across the Finley property in order to allow Matthew access to his property (“the McCoy property”), Which is landlocked. On March 17, 2014, Finley appealed the probate court’s judgment to the circuit court. Also' on March 17, 2014, Matthew amended his petition to assert that he had an easement by prescription, implication, and necessity over the Finley property. After a de novo trial, the circuit court entered a judgment on May 18, 2015, condemning the 30-foot right-of-way over the Finley property in favor of Matthew for purposes of ingress and egress and awarding Finley-cry damages in the amount of $5,500; the circuit court also stated that, in th'e alternative, Matthew held an easement by prescription and implication. On June 11, 2015, Finley filed a postjudgment motion. That motion was denied by operation of law on September 9, 2015. See Rule 59.1, Ala. R. Civ. P. On September 16, 2015, Finley filed her ■notice of appeal to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to Ala,Code 1975, § 12-2-7. ,

Facts

Before 1945, Dallas Tucker and Lula Tucker owned both the Finley property and the McCoy property as one parcel. In 1945, the Tuckers first divided their property into two parcels by transferring the McCoy property to Jacob Hildebrand and Annie Hildebrand, who later transferred the McCoy property to John L. McCoy in 1951.

[396]*396Ronald John McCoy, who was John L. McCoy’s son and successor in title as well as Matthew’s predecessor in title, testified that he had moved to the McCoy property in 1951 when his father purchased the property. He testified that his family had lived in a house on the McCoy property for 10 or 12 years, until the house burned. He testified that his family had crossed the Finley property -by way of the driveway in order to reach their house; he testified that-there was no other way to access the McCoy property. Ronald testified that the house on the McCoy property had burned, that, after the house burned, his family had raised cattle on the McCoy property up until the 1990s, and that they had accessed the McCoy property every day during that period by using the driveway. He testified that his family had subsequently used a garage on the McCoy property for storage. Ronald testified that shortly before Finley acquired the Finley property in 2003 his family had stopped using the driveway. He testified that Finley had blocked the driveway by the time this action had been commenced. Ronald testified that the driveway had been used continuously for more than 20 years.

Dorothy Powell, Ronald’s sister, and Billy Shadwrick, who had previously lived near the McCoy property, also testified that the owners of the McCoy property had used the driveway continuously for more than 20 years. Powell testified that Harvey McCoy, who was John L. McCoy’s brother, had owned the Finley property at the time John had owned the McCoy property. She testified that Harvey had not objected to John’s use of the driveway. Shadwrick admitted that the driveway had not been used as much after the house on the McCoy property had burned down.

Matthew testified that, after he initiated the condemnation action in the probate court, Finley moved a trailer across the driveway. Matthew testified that, to cross another person’s property to get to Mine Road, a different public road than the road the driveway leads to, would not be feasible. He testified that it would probably cost $100,000 to make that way passable because there is a big hill and rock bed between the McCoy property and Mine Road.

Alvin Wain testified that he had lived on property adjacent to the Finley property from 1985 until 2007 and that he had seen the McCoy family use the driveway only two or three times. He testified that, at the time of trial, trees were grown up in the driveway and that he did not think anyone could use it.

Finley testified that, after the house on the McCoy property burned, according to her recollection, in 1968 or 1969, the driveway had been used by the McCoy family “once in a while.” She testified that a double-wide mobile home had been placed across the driveway toward the back of her property in 1974 and that the mobile home had burned in 1985. She testified that the McCoy family would drive around the mobile home and “ride the ditch” beside the driveway to get to the McCoy property during that time. She testified that the driveway has been blocked by trees for 32 years and that the McCoys had had to go around trees and cut tree limbs off of trees in order to access the McCoy property using the driveway.

Finley testified that she had placed a new mobile home across the driveway before this action had been commenced and that it would be a big expense to move the mobile home. She testified that the McCoy property almost touches Mine Road and that accessing the McCoy property from that direction would be more convenient and accessible.

[397]*397 Standard of Review

“‘[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.’ ” 1

Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)).

Discussion

On appeal, Finley argues that the circuit court erred in condemning a right-of-way over her property and erred in determining that Matthew had an easement by prescription and implication. We find the issue whether there was an easement by implication dispositive and, therefore, pretermit discussion of the other aforementioned issues.

With regard to whether there was an easement by implication, Finley argues:

“[T]he use of the easement by [Matthew] has not been ‘continuous’ but only sporadic. [Matthew’s] use of the ‘easement’ essentially ceased after the house built by John L. McCoy burned in either in 1967 or 1968. Ronald McCoy did store some toilets in a shed on the property, which were retired in about 2001, by ‘going around’ a trailer blocking the easement, but said use, in and of itself, is insufficient to establish that the McCoys intended to continue use of the ‘easement.’ ”

In Helms v. Tullis, 398 So.2d 253, 255-56 (Ala.1981), our supreme court explained:

“Easements created by implication cover a variety of types of easements. Creation by this method requires not only original unity of ownership, Brewer v. Avinger, 208 Ala. 411, 94 So.

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Related

Raidt v. Crane
342 So. 2d 358 (Supreme Court of Alabama, 1977)
Reed v. BD. OF TRUSTEES FOR AL. STATE UNIV.
778 So. 2d 791 (Supreme Court of Alabama, 2000)
Helms v. Tullis
398 So. 2d 253 (Supreme Court of Alabama, 1981)
McCulloch v. Roberts
276 So. 2d 425 (Supreme Court of Alabama, 1973)
Zadnichek v. Fidler
894 So. 2d 702 (Court of Civil Appeals of Alabama, 2004)
Western Union Telegraph Co. v. Louisville N. R. Co.
89 So. 518 (Supreme Court of Alabama, 1921)
Brewer v. Avinger
94 So. 590 (Supreme Court of Alabama, 1922)
Birmingham Trust & Savings Co. v. Mason
130 So. 559 (Supreme Court of Alabama, 1930)
Walker v. Clifford
128 Ala. 67 (Supreme Court of Alabama, 1900)

Cite This Page — Counsel Stack

Bluebook (online)
204 So. 3d 394, 2016 Ala. Civ. App. LEXIS 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finley-v-mccoy-alacivapp-2016.