Alabama Power Co. v. Daily

• Decision Date: 23 May 1944
• Docket Number: 6 Div. 60.
• Citation: 31 Ala.App. 441,18 So.2d 142
• Parties: ALABAMA POWER CO. v. DAILY.
• Court: Alabama Court of Appeals

18 So.2d 142

31 Ala.App. 441

ALABAMA POWER CO. v. DAILY.

6 Div. 60.

Alabama Court of Appeals

May 23, 1944

McQueen & McQueen, of Tuscaloosa, and Martin, Turner &amp McWhorter, of Birmingham, for appellant.

F. F. Windham, of Tuscaloosa, for appellee.

SIMPSON Judge.

The suit claims damages for an alleged trespass upon the lands of plaintiff, the acts complained of having been done by defendant company during the course of constructing its electric transmission line across the land. Judgment was for the plaintiff and the defendant appeals.

Briefly the undisputed facts were: The plaintiff's predecessor in title conveyed to defendant company a one hundred foot right of way across the tract of land involved for the construction, operation and maintenance of electric transmission lines, towers, poles, etc., from time to time together with full rights of enjoyment or use, including rights of ingress and egress. This conveyance was under date of July 11, 1924. Soon thereafter, in the same year, the defendant cleared the right of way and constructed its line thereon, which led to and furnished a coal mine in that vicinity. This line remained in status quo until 1932, when the defendant removed it completely from the property, the wires, poles and all equipment. This right of way from that date, for a little more than ten years and until 1942 remained in complete disuse by defendant and was used only by plaintiff to pasture his cattle. Then, in the fall of 1942, the defendant company, against the objection of the plaintiff who had meanwhile purchased the thirty-two acre tract of land once traversed by the line, entered upon the land and again cleared the original right of way which had in the interim produced considerable timber. A new transmission line was then erected and during the course of construction the alleged damages and injuries were caused not only to the right of way but to the land adjacent thereto. It was for these damages that the suit was brought.

The theory of the plaintiff's claim was that the right of way had been abandoned, title thereto having reverted to the servient estate. The defense was that, as a matter of law, no abandonment had occurred.

The primary and controlling question here presented by the argument is: Did the complete disuse by the company of the easement for the little more than ten-year period, together with the other recited evidence of removal of the line, etc., require submission of the issue to the jury of the abandonment, vel non, of the easement by the company; or, on the contrary, was the company under the facts entitled to the general affirmative charge that, as a matter of law, it had not abandoned it?

The trial court ruled that the evidence on this phase of the case presented a jury question and refused defendant's Charge 20 that "under the evidence in this case there is no proof which would sustain a finding by you (jury) that defendant had abandoned its easement or right of way." This ruling of the court is the main contention for error.

It is our view that the trial judge had a full grasp of the applicable law, as exemplified by the general oral charge and rulings pending trial, and that said Charge 20 was correctly refused.

It is settled law, as argued by counsel for appellant, that mere non-use of an easement or right of way, however long continued, will not of itself effect an abandonment or forfeiture of the right. Western Union Telegraph Co. v. Louisville & N. R. Co., 202 Ala. 542, 81 So. 44.

Nevertheless, the owner of an easement may terminate it by abandonment, and the essence of the inquiry is the owner's intention, and "lapse of time and nonuser are evidentiary of an intention to abandon, and, when considered with other evidence of such intention, may be entitled to great weight according to the circumstances." Western Union Telegraph Co. v. Louisville & N. R. Co., 206 Ala. 368, 370, 89 So. 518. Tennessee & C. R. Co. v. Taylor, 102 Ala. 224, 228, 14 So. 379; 28 C.J.S., Easements, pp. 722, 741,§§ 58, 69, subsec. d.

On the principle last quoted and authorities cited, it is quite clear to us the inquiry of the intention of the company, under the recited facts, and the abandonment, vel non, of the right of way were issues for the jury and not exclusive matters for judicial determination.

A case bearing marked similarity to the instant one, where non-use alone was for a much longer period and the other circumstances less efficacious to evince an intention to abandon, is Tennessee & C. R. Co. v. Taylor, cited above, wherein it was held that the issue of abandonment was a jury question. The quotation there approved and the conclusion announced are here apposite: ""'Abandonment" includes both the intention to abandon, and the external act by which the intention was carried into effect,' and, 'as intent is the essence of abandonment, the facts of each particular case are for the jury.' 1 Amer. & Eng.Enc.Law, p. 1, notes and authorities; Wyman v. Hurlburt, 12 Ohio 81, 40 Am.Dec. 461, note, 464. On the view we take of this case, the only issue in it was upon this question of abandonment vel non, and the result of this issue depended upon the jury's finding as to the defendant's intent." 102 Ala. at page 228, 14 So. at page 380.

It seems to be the universal rule that the question of abandonment ordinarily is an issue of fact for jury...