Brown v. Alabama Power Co., 7 Div. 596
| Citation | 156 So.2d 153,275 Ala. 467 |
| Decision Date | 29 August 1963 |
| Docket Number | 7 Div. 596 |
| Parties | Marshall A. BROWN et ux. v. ALABAMA POWER COMPANY. |
| Court | Supreme Court of Alabama |
Merrill, Merrill, Vardaman & Williams, Anniston, for appellants.
Reed & Reed, Hugh Reed, Jr., Centre, Martin, Vogtle, Balch & Bingham, S. Eason Balch and Jas. H. Hancock, Birmingham, for appellee.
This is an appeal from a decree of the Circuit Court of Cherokee County enjoining the respondent from erecting a house or cottage on certain land upon which the complainant, the Alabama Power Company, owns a flowage easement or an easement to flood the land.
The cause was submitted to the lower court upon the bill of complaint and stipulations. All of the paragraphs of the bill of complaint were admitted to be true except the last two paragraphs. The admitted portions of the bill of complaint and the stipulations show that the Power Company purchased from Mr. and Mrs. B. C. Naugher a fee simple title to certain lands in Cherokee County below the datum plane of 565 feet above mean sea level. In addition to the area conveyed in fee simple, the Naugher's also granted to the Power Company the right to flood other land owned by them up to the datum plane of 572 feet above mean sea level.
Thereafter the Naughers deeded to Marshall A. Brown and Nannie Mae Brown for their lifetime a lot in that portion of their land subject to the appellee's flowage easement.
It was stipulated that the appellants thereafter erected on this lot a dwelling house with a foundation of conventional concrete blocks. The base of the foundation being generally an elevation of 567 feet above mean sea level. It was further stipulated that in the exercise of the flowage easement, which the appellee would from time to time be compelled to exercise under their license from the United States government to erect a dam on the Coosa River, that water would cover a portion of the structure, in that the floor of the house was at a height of 571 feet above mean sea level. Further, any electric wiring below the 572 foot level would be dangerous in the event of overflow, and the plumbing and sewage facilities of the house connected to a septic tank would be completely under water in such event.
Admitted paragraph 11 of the bill of complaint avers that the respondents are threatening to fill a portion of the easement land with dirt in such fashion as to exclude the water therefrom.
Further it is stipulated that on occasions the appellant and friends would sleep overnight in the dwelling.
Upon the summation of the above facts, the court entered a decree finding that:
'* * * the construction, use or occupation by respondents of a dwelling house on the land involved herein which is subject to complainant's said flood easement and the other acts and threatened acts of respondents set forth in paragraphs 10 and 11 of the bill of complaint (a) constitute a material and unlawful interference with complainant's said flood easement, (b) wrongfully restrict and obstruct the full and free enjoyment of such easement by complainant, (c) interfere with and hamper complainant in carrying out its lawful duty of providing flood storage and control required by the license issued to complainant by the Federal Power Commission, (d) unlawfully reduces the flood storage capacity of complainant's reservoir, (e) increase complainant's risk and exposure to claims for damages to property or injury to or death of persons arising out of the full enjoyment by complainant of its flood easement and (f) are causing complainant irreparable injury and harm; * * *.'
Upon consideration, the court being of the opinion that the complainant was entitled to the relief prayed for in the bill of complaint, entered a judgment and decree permanently enjoining the respondents from:
'(1) constructing and maintaining a dwelling house on the land involved in this suit (being the land described in Exhibit 'D' to the bill of complaint and also described in that certain deed recorded in the Office of the Judge of Probate of Cherokee County, Alabama, in Book A-45, at page 295), (2) filling any portion of the land involved in this suit with dirt and/or erecting an earth dike around any portion of such land, (3) interfering with or obstructing complainant from providing the flood storage and control required of complainant by the license issued to it by the Federal Power Commission on October 29, 1957, as amended, and (4) using or improving the land involved in this suit in any manner which will exclude the waters impounded by complainant's Weiss Dam from any portion of such land or otherwise reducing the flood storage capacity of Weiss Dam reservoir.'
From this decree the appellants have perfected their appeal to this court.
When, as here, one is granted by an instrument in writing based upon a sufficient consideration a right to overflow or back water upon the land of another, an easement to flood is thereby created, the holder of the easement having dominant estate; and the owner of the land possessing the servient estate. Atlanta & B. Air Line Ry. v. Wood, 160 Ala. 657, 49 So. 426; 93 C.J.S. Waters § 27. One who purchases land subject to, or with notice of, an easement takes the estate subject to such easement. Scheuer v. Britt, 217 Ala. 196, 115 So. 237.
The owner of the servient estate must abstain from acts interfering with...
To continue reading
Request your trial
-
West Town Plaza Associates, Ltd. v. Wal-Mart Stores, Inc.
...jurisdiction to enjoin the obstruction of private easements and to require the removal of such obstructions." Brown v. Alabama Power Co., 275 Ala. 467, 470, 156 So.2d 153 (1963) (citations omitted); see also Potts v. Water Works Bd., City of Aliceville, 267 Ala. 46, 100 So.2d 16 (1958); Ala......
-
Dombrowski Living Trust v. Morgantown Prop. Owners Ass'n, Inc., 2150391
...the estate subject to such easement.' " Chestang v. Burkett, 717 So.2d 379, 381 (Ala.Civ.App.1998) (quoting Brown v. Alabama Power Co., 275 Ala. 467, 470, 156 So.2d 153, 155 (1963) ). Whether an easement was created is a question of intent."The paramount objective of a court in interpreting......
-
Alabama Power Co. v. Drummond
...vested in the owner of the dominant tenement. Alabama Power Co. v. Martin, 341 So.2d 695 (Ala.1977). See also Brown v. Alabama Power Co., 275 Ala. 467, 156 So.2d 153 (1963) (owner of the servient estate may not interfere with the dominant estate); Collins v. Alabama Power Co., 214 Ala. 643,......
-
Shell v. Williams
...& Licenses §§ 72-75. The use of the servient estate must be consistent with that of the dominant estate. Brown v. Alabama Power Co., 275 Ala. 467, 156 So.2d 157 (1963).U.S. ex rel. and for Use of Tennessee Val. Authority v. Hughes, 408 F.2d 619, 621(6th Cir.1969) (emphasis added).In Tenness......