Ex parte Cove Properties, Inc.
| Decision Date | 28 July 2000 |
| Citation | 796 So.2d 331 |
| Parties | Ex parte COVE PROPERTIES, INC. (Re Cove Properties, Inc. v. Walter Trent Marina, Inc.) |
| Court | Alabama Supreme Court |
Norton W. Brooker, Jr., and William E. Shreve, Jr., of Lyons, Pipes & Cook, P.C., Mobile, for petitioner.
Mylan R. Engel and Edgar P. Walsh of Engel, Walsh & Associates, Mobile, for respondent. JOHNSTONE, Justice.
Cove Properties, Inc., petitioned for a writ of certiorari for this Court to review the judgment of the Court of Civil Appeals, which affirmed in part and reversed in part the trial court's summary judgment entered in favor of Cove Properties, Inc. v. Walter Trent Marina, Inc., 796 So.2d 322 (Ala.Civ.App.1999)(Cove II). We granted certiorari to determine whether the Court of Civil Appeals erred in interpreting § 33-7-50, Ala.Code 1975, and in affirming in part and in reversing in part the judgment of the trial court. Because we determine that the summary judgment should have been reversed in its entirety, we reverse the part affirmance and affirm the part reversal by the Court of Civil Appeals.
The issue is whether one waterfront property owner can build in front of the riparian lands of an adjacent waterfront property owner. Our holding is limited to properties on generally straight or convex shorelines. The holding in this case will not necessarily govern a dispute between owners of properties on a shoreline so deeply concave that any structure in front of the riparian lands of one property will necessarily be in front of the riparian lands of another property.
Cove and Walter Trent are adjoining landowners of property fronting Terry Cove in Baldwin County, Alabama. In 1993, upon the issuance of permits by the Army Corp of Engineers and the Alabama State Docks Department, Walter Trent built a pier extending 350 feet southward from shore. Part of the pier is located on certain submerged property leased to Walter Trent by the State. Cove had a survey conducted of the boundary line between its property and Walter Trent's property and of Walter Trent's pier. The survey shows that Walter Trent's pier encroaches in front of Cove's property approximately six inches at the landward, or northern, end of the pier and encroaches in front of Cove's property approximately 7.1 feet at the southern tip of the pier. That part of the encroachment which extends southward over navigable waters, including the 7.1-foot encroachment at the very southern tip of the pier, is on the submerged property leased to Walter Trent by the State. Cove Properties, Inc. v. Walter Trent Marina, Inc., 702 So.2d 472, 473 (Ala.Civ.App.1997) (Cove I).
In 1996, Cove filed a declaratory judgment action against Walter Trent and requested injunctive relief, damages, "just compensation," and damages under 42 U.S.C. § 1983. Cove I. Walter Trent moved to dismiss Cove's complaint on the ground that the two-year statute of limitations of § 6-2-38(l), Ala.Code 1975, barred the complaint. Following arguments of counsel, the trial court dismissed Cove's complaint. Cove appealed. The Court of Civil Appeals affirmed the dismissal of Cove's claims for "just compensation" and for damages under 42 U.S.C. § 1983, but reversed the dismissal of Cove's claims for a declaratory judgment, for injunctive relief, and for damages. Cove I, supra. The Court of Civil Appeals remanded the cause for further proceedings. Id.
Following remand, on the ground that, because its encroachment occurred in "navigable waters," the encroachment could not have violated Cove's property rights, Walter Trent moved for a summary judgment on all of Cove's claims. In support of its motion, Walter Trent submitted a copy of "Amendment No. 1 to [Walter Trent's] Lease Agreement" with the State of Alabama, acting through the Commissioner of the Department of Conservation and Natural Resources; various maps; a letter from the director of the State Lands Division of the Department of Conservation and Natural Resources; and a boundary-line agreement between Cove and the president of, and principal owner of, Walter Trent. The State had leased Walter Trent "a parcel of submerged land consisting of a wedge shaped area 7.1 ft. wide at its widest point and 150 ft. long and tapering to a point landward of the triangle base, containing 532.5 square feet, more or less." Cove responded in opposition to Walter Trent's motion and moved for a partial summary judgment in its favor. In support of its opposition and its own motion, Cove filed a copy of the deed to its property; an affidavit from Cove's former president, Dennis W. Bikun; excerpts of the deposition of Walter Trent's president and principal owner; a letter addressed to Walter Trent from the chief of the Regulatory Branch, Operations Division, of the United States Army Corps of Engineers, Mobile District; and a letter addressed to Walter Trent from the Alabama State Docks Department. Neither the Army Corps of Engineers nor the Alabama State Docks Department would express an opinion of Walter Trent's property rights to erect the pier.
On June 17, 1998, on the case action summary sheet, the trial court entered a judgment:
Cove filed a Rule 59, Ala.R.Civ.P., post-judgment motion for the trial court to vacate its judgment and to enter judgment in favor of Cove. Following a hearing, the trial court denied Cove's postjudgment motion. Cove appealed. The Court of Civil Appeals affirmed "that portion of the summary judgment pertaining to the parties' rights beyond the point of navigability, and [reversed] the summary judgment as it applies to the parties' property rights above high-water mark and the parties' riparian rights up to the point of navigability in Terry Cove." Cove II, 796 So.2d at 328-29.
The rights of riparian owners are stated in §§ 33-7-50 through 33-7-54, Ala. Code 1975. Section 33-7-50 states:
...
To continue reading
Request your trial
-
Vaughn v. State
...and the clearly expressed intent of the legislature must be given effect.' IMED Corp.,602 So.2d at 346." Ex parte Cove Props., Inc., 796 So.2d 331, 333-34 (Ala.2000). Section 13A-10-60, Ala.Code 1975, provides, in pertinent "(a) The definitions contained in Section 13A-10-1 are applicable i......
-
Home Oil Co. Inc. v. Sam's East, Inc.
...and the clearly expressed intent of the legislature must be given effect.' IMED Corp., 602 So.2d at 346. Ex parte Cove Props., Inc., 796 So.2d 331, 333-34 (Ala.2000). Added to this is the rule "that the AMFMA must be strictly construed in [the defendant's favor and against [the plaintiff] b......
-
Patterson v. EMERALD MOUNTAIN EXP. BRIDGE
...of the legislature in enacting the statute. State v. Pettaway, 794 So.2d 1153, 1155 (Ala.Civ.App.2001); see also Ex parte Cove Properties, Inc., 796 So.2d 331 (Ala.2000); IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344 (Ala.1992). In determining the Legislature's intent, this court......
-
SPOTTSWOOD v. REIMER
...within the boundary lines of their riparian rights so long as it does not unreasonably obstruct navigation. In Ex parte Cove Properties, Inc., 796 So.2d 331 (Ala.2000), the supreme court "The rights of riparian owners are stated in §§ 33-7-50 through 33-7-54, Ala.Code 1975. Section 33-7-50 ......
-
The Appellate Corner
...Cove Properties, Inc. v. Walter Trent Marina, Inc., 796 So. 2d 322, 326-27 (Ala. Civ. App. 1999), reversed in part on other grounds, 796 So. 2d 331 (Ala. 2000). The court concluded that DNCR's decision to allow the pier was not clearly unreasonable. Standing; Non-Profits Boys & Girls Clubs ......