251 F.2d 537 (5th Cir. 1958), 16460, Southern Bell Tel. & Tel. Co. v. Southern Precision Pattern Works, Inc.

Docket Nº:16460.
Citation:251 F.2d 537
Party Name:SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY and American Telephone and Telegraph Company, Appellants, v. SOUTHERN PRECISION PATTERN WORKS, Ins., Appellee.
Case Date:January 03, 1958
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 537

251 F.2d 537 (5th Cir. 1958)

SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY and American Telephone and Telegraph Company, Appellants,

v.

SOUTHERN PRECISION PATTERN WORKS, Ins., Appellee.

No. 16460.

United States Court of Appeals, Fifth Circuit.

January 3, 1958

         Rehearing Denied Feb. 25, 1958.

Page 538

         James A. Simpson, Reid B. Barnes, Birmingham, Ala. (Lange, Simpson, Robinson & Somerville, Birmingham, Ala., Joseph Higgins, Cincinnati, Ohio, John A. Boykin, Jr., Harvey L. Cosper, Walter R. Byars, Altanta, Ga., of counsel), for appellants.

         W. H. Sadler, Jr., Harold F. Herring, Birmingham, Ala. (Sadler & Sadler, Birmingham, Ala of counsel), for appellee.

         Before RIVES, JONES and BROWN, Circuit Judges.

         RIVES, Circuit Judge.

         The controlling issue is whether the appellants have acquired over the land of the appellee a right of way, easement or other property interest entitled to protection. The appeal is from a final judgment for the defendant, appellee, in an action for a declaration of rights and for an injunction brought by the appellants as plaintiffs. The findings of fact by the district court are not attacked, and in pertinent part are quoted in the margin. 1

Page 539

A right of way, easement or other property interest is claimed by the appellants over the appellees' tract of land under either of two principles, thus stated in appellants' brief:

         '(a) By twenty-year prescriptive right under the law of Alabama, and

         '(b) as a taking by a public utility vested with the power of eminent domain under the doctrine of Roberts v. Northern Pacific Railroad Co., 158 U.S. 1 (15 S.Ct. 756), 39 L.Ed. 873, and Birmingham Belt Railroad Co. v. Lockwood, 150 Ala. 610, 42 So. 819.'

         1. In support of the claimed twenty-year prescriptive right, the appellants invoke the Alabama doctrine of prescription or repose whereby title to real property may be acquired by virtue of possession for twenty years without recognition of adversary rights or admission of liability, and rely upon the following decisions: Kidd v. Borum, 181 Ala. 144, 61 So. 100; Walker v. Coley, 264 Ala. 492, 88 So.2d 868; Stearnes v. Woodall, 218 Ala. 128, 130, 117 So. 643, 644; Oxford v. Estes, 229 Ala. 606, 611, 158 So. 534.

         The appellee points out that each of those cases involved possession of and title to a parcel of land itself rather than an easement thereon, and that as to private easements 2 the rule is different and is well established that,

         '* * * a private easement is not established merely by use of the lands of another for twenty years, or more, but such use must have been adverse to the owner of the premises over which the easement is claimed under claim of right, exclusive, continuous and uninterrupted, with actual or presumptive knowledge of the owner.' Roberts v. Monroe, 261 Ala. 569, 75 So.2d 492, 499.

         See, also, West v. West, 252 Ala. 296, 40 So.2d 873; Sellers v. Valenzuela, 249 Ala. 627, 32 So.2d 517; Birmingham Trust & Savings Co. v. Mason, 222 Ala. 38, 130 So. 559; Hill v. Wing, 193 Ala. 311, 69 So.

Page 540

         445; Stewart v. White, 128 Ala. 202, 30 So. 526, 55 L.R.A. 211; Bellview Cemetery Co. v. McEvers, 168 Ala. 535, 53 So. 272; Jesse French Piano & Organ Co. v. Forbes, 129 Ala. 471, 29 So. 683.

         The appellants concede that the cases upon which they rely are cases dealing with 'area' occupancy, but point out that the cases relied upon by appellee deal with private alleys and private ways of access, and insist that the instant case involves 'area' occupancy because, 'Obviously, no one else could occupy the space occupied by Appellants' manhole structures and their connecting conduit.'

         The distinction which appellants seek to draw seems to be open to the Alabama Supreme Court under the facts of the cases which have been decided, but thus far no such distinction has been recognized in the Court's opinions which are couched in general terms referring to a 'private easement', or even expressly to 'a right of way or other easement' as in Drummond v. Franck, 252 Ala. 474, 41 So.2d 268, 272. 3 Further, the Alabama Supreme Court has shown that the rule in Alabama as to the establishment of a private easement differs from that recognized by the majority of American courts, and requires that, 'To create such an easement, there must be evidence that the use was adverse to the owner.' West v. West, 252 Ala. 296, 40 So.2d 873, 874, 875. 4

         The opinion in that case refers to an annotation in 170 A.L.R. 770, and that annotation, beginning on page 794, contains an interesting account of the development of the law in Alabama, and emphasizes particularly that in Jesse French Piano & Organ Co. v. Forbes, 129 Ala. 471, 29 So. 683, 'the crossing of the property line by the swinging of the blinds was relied on.'

         It seems to us that appellants' argument would have the tail wag the dog, for, clearly, the 'area' occupation of the land by appellants' manholes and connecting conduit could not ripen into a fee title but was a mere incident to the claimed easement. If the easement were abandoned...

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