Alabama Power Co. v. Gielle
| Decision Date | 11 July 1979 |
| Citation | 373 So.2d 851 |
| Parties | ALABAMA POWER COMPANY v. Fred H. GIELLE, Jr., and wife, Katherine K. Gielle, and Annette Keeling Cummans. Civ. 1732, Civ. 1733. |
| Court | Alabama Court of Civil Appeals |
S. Allen Baker, Jr. of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellant.
William D. Hudson, Gadsden, for appellees.
The defendant, Alabama Power Company, appeals from an order of the circuit court denying its alternative motions for a judgment notwithstanding the verdict or a new trial. We affirm.
The plaintiff owns residential property on Lake Neely-Henry, a lake impounded by a hydroelectric dam owned and operated by defendant. Defendant maintains a 110 ft. power pole on plaintiff's lot. The instant action arose because the easement for defendant's pole describes, not plaintiff's lot but fifty adjacent acres. As revealed by the record, this discrepancy came about in the following manner:
In 1965, while Neely-Henry Dam was under construction, the defendant began purchasing all the property which would eventually form the lake bed and began acquiring easements for the relocation of power poles. Alabama Development Company, a real estate company, owned some property along the proposed shoreline of the lake in Section 21, Township 12 South, Range 6 East, in Etowah County.
On May 15, 1965, defendant acquired a power pole easement from Leslie King, President of Alabama Development Company, on land described as fifty acres in the W1/2 of the NW1/4 of Section 21. Defendant constructed a power pole on the lot shortly thereafter. However, defendant contends that the description of the land upon which the pole is located is erroneous in that the easement was intended to be taken on fifty acres in the W1/2 of the SW1/4 of Section 21.
Plaintiff's lot lies in the tract for which defendant contends the easement was intended. In 1968, plaintiff succeeded King as president of Alabama Development Company, and in 1976 he purchased his lot from the company. During the construction of a home on the lot, plaintiff discovered that defendant's easement did not describe his property and requested that the pole be relocated. Defendant refused.
Plaintiff then instituted this action for damages for trespass and for ejectment. Defendant counterclaimed for reformation of the description in the easement and for an easement by condemnation on the grounds of equitable estoppel. During the pendency of the suit, the property was sold to Annette Cummans, and she was joined as a plaintiff.
After a jury trial, a verdict was returned for plaintiffs. Nominal damages for trespass were awarded, $2,000 to Gielles and $100 condemnation damages were awarded to Cummans. Defendant appealed upon denial of its motion for a judgment notwithstanding the verdict or alternatively a new trial.
Defendant's principal contention is that the evidence, as a matter of law, conclusively established equitable estoppel and the trial court therefore erred to reversal in allowing this issue to go to the jury. We disagree.
Where an entity with the power to appropriate land under the doctrine of eminent domain appropriates land improperly, the owner may nevertheless be estopped from recovering damages for trespass or maintaining an action in ejectment if: (1) the entity has entered the land and constructed its improvement; and (2) the owner knows of the improvement; but (3) allows large sums of money to be expended on the improvement. Montgomery v. Alabama Power Co., 250 Ala. 441, 34 So.2d 573 (1948).
It is a question for the jury whether the facts adequately establish estoppel. Unless only one reasonable inference can be drawn from the evidence, the question may not be taken from the jury. Humphrey v. Boschung, 287 Ala. 600, 253 So.2d 769 (1971).
In this regard defendant submits that it was entitled to a directed verdict. Specifically, defendant maintains the jury could only reach the conclusion that King had knowledge that the pole was located on the subject property because of the uncontroverted testimony of its right of way agent, Garner, who stated that King visited the property before the pole was placed.
Although we agree that the jury had only the testimony of defendant's agent on the issue of whether King knew the pole was on the subject tract, it was entitled to give little or no probative value to such testimony by virtue of the discrediting features contained therein. See, e. g., Ryan v. Wohl, South & Co., 241 Ala. 123, 1 So.2d 292 (1941). This is especially so, where as here, the testimony is that of a person interested in the outcome of the litigation. See, e. g., Morgan Plan Co. v. Beverly, 35 Ala.App. 563, 51 So.2d 177, Cert. dismissed, 255 Ala. 235, 51 So.2d 179 (1951).
On direct examination, Garner stated that because the events had occurred a long time ago, he could not remember the route he and King took to view the property nor the substance of any conversation with King regarding King's plans for the tract. On cross-examination, Garner admitted that he handled a great many relocations and that this power line was not the only improvement with which he was concerned at the time.
More importantly, and contrary to defendant's contention, Garner stated that he showed King the "general vicinity" as opposed to the exact position on which the pole would be placed. In addition, Garner testified that at the time, the parcel and surrounding land was swampy, completely unimproved and undergoing extensive earthmoving operations. His testimony further indicates that even the eventual shoreline of the lake was uncertain at the time.
Given this testimony together with the fact that Alabama Development Company gave defendant an easement on land adjacent to and just north of the subject property (land which is now the edge of the lake), it was within the province of the jury to conclude that King could not be charged with knowledge of the exact location of the pole or that it would be placed on the subject property.
To this court, and without Garner's testimony, the jury was left with a single fact with which to charge King with the requisite knowledge, I. e., Alabama Development Company's ownership of the land. As to this we observe that the company owned a great deal of land on, under and around the lake and in the proximity of the tract in question, and therefore, it was further...
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