Alabama Power Co. v. Drummond
Decision Date | 16 February 1990 |
Citation | 559 So.2d 158 |
Parties | ALABAMA POWER COMPANY v. Silvia Easterwood DRUMMOND. 88-990. |
Court | Alabama Supreme Court |
James H. Miller III, Dan H. McCrary and James H. Hancock, Jr. of Balch & Bingham, Birmingham, for appellant.
H. Thomas Wells, Jr. and Alfred F. Smith, Jr. of Maynard, Cooper, Frierson & Gale, Birmingham, for appellee.
Alabama Power Company (hereinafter "APCo") appeals from the judgment of the Circuit Court of Walker County granting Silvia Drummond the right to maintain an existing encroachment onto APCo's flood easement adjacent to Drummond's land.
Silvia Drummond owns a parcel of land in Walker County known as lot 1 in Longview Subdivision. This land is adjacent to Lewis M. Smith Reservoir ("Smith Lake"), an APCo hydroelectric development. APCo acquired much of the land around what is now Smith Lake in the years prior to the development of the lake. Later, however, APCo sold off some parcels of that land. Drummond's land is one such parcel.
APCo acquired the subject property in 1930 from W.H. and Gladys Parker. Thereafter, APCo conveyed this parcel to Alabama Properties Company. APCo retained the fee title to land lying at elevations less than 510 feet above mean sea level, and retained a flood easement over lands lying between 510 and 522 feet above mean sea level and the right of ingress to and egress from that easement. The conveyance to Alabama Properties Company also contained certain restrictive covenants. Those covenants are as follows:
(Emphasis added.)
Longview Subdivision was created after Alabama Properties Company took title from APCo, and certain building restrictions, recorded in 1961, were placed on lot 1. Those restrictions provide that a 15-foot sideyard is to be maintained on lot 1. The set-back line from which the sideyard is to begin is at the 522-foot line.
Silvia Drummond's deposition testimony shows that she and her husband, Gary Neil Drummond, acquired title to the subject property in the late 1960's. In 1979, the Drummonds divorced. As a part of the divorce settlement, Gary Drummond conveyed to Silvia Drummond lots 1 and 2 of Longview Subdivision, together with the house situated on lot 1. Lot 2 of these tracts is specifically described as lying between the 510- and 522-foot lines; and lot 2 is specifically encumbered by a flood easement in favor of APCo.
It appears to be undisputed that Silvia Drummond was aware of the flood easement. Her deposition testimony indicates that she was aware that the easement covered land up to the 522-foot line and that she may have known this for as long as 10 years before the challenged construction was begun. She also indicates that the contractors who performed the construction work were also aware of the easement. The evidence is disputed as to whether these contractors made Drummond aware that the proposed addition to her home would encroach into the flood easement. Despite the fact that the flood easement and restrictive covenants were a matter of public record, Drummond constructed an addition to her home that now encroaches onto the APCo flood easement. Certain "fill material" was also placed in the easement.
APCo filed suit in this matter on January 29, 1985. In its complaint, APCo sought a permanent injunction enjoining Drummond from "maintaining [the] house and associated structures within plaintiff's flood easement" and from maintaining the fill material in the easement, and requiring Drummond to remove the addition, the fill material, and "associated structures" within the easement. Drummond points out, however, that APCo has in the past granted numerous persons "waivers" from its flood easements and has not sought to have the encroaching structures removed.
After a hearing, the trial court entered a memorandum opinion and order, which, in part, reads as follows:
Our review of the trial court's order indicates that the judge attempted to balance the parties' interests in the case at hand. APCo argues in its brief that the trial court erred by "balancing the relative equities." APCo argues that Alabama law precludes the trial court from balancing the equities in a case like this one. We note, however, that the issuance of injunctive relief is a matter left to the sound discretion of the trial court. Hood v. Neil, 502 So.2d 749 (Ala.1987); Powell v. Phenix Federal Savings & Loan Ass'n, 434 So.2d 247 (Ala.1983). Thus, APCo must show that the trial court committed plain and palpable error to warrant a reversal. Reed v. City of Montgomery, 341 So.2d 926 (Ala.1976); Ex parte Jones, 246 Ala. 433, 20 So.2d 859 (1945). Granting injunctive relief is within the trial court's discretion especially where, as here, the evidence was presented only to the trial court and not to a jury. Powell, supra. The trial court's judgment may be...
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