Bruner v. GENEVA COUNTY FORESTRY DEPT.

• Decision Date: 16 May 2003
• Citation: 865 So.2d 1167
• Parties: Adlee BRUNER and Riverbend Lumber Company v. GENEVA COUNTY FORESTRY DEPARTMENT et al.
• Court: Alabama Supreme Court

865 So.2d 1167

Adlee BRUNER and Riverbend Lumber Company v. GENEVA COUNTY FORESTRY DEPARTMENT et al.

1011658.

Supreme Court of Alabama.

May 16, 2003.

Henry F. Lee III, Geneva, for appellants.

William H. Pryor, Jr., atty. gen., and David J. Dean, asst. atty. gen., for appellee Department of Conservation and Natural Resources, State Lands Division.

HARWOOD, Justice.

As finally constituted, the civil action underlying this appeal was prosecuted by Adlee Bruner ("Bruner"), Riverbend Lumber Company, a Florida corporation ("Riverbend"), and Bruner Lumber Company, Inc., a Florida corporation ("Bruner Lumber"), against two agencies of the State of Alabama, the Alabama Forestry Commission ("Forestry") and the State Lands Division of the Alabama Department of Conservation and Natural Resources ("Conservation"). Brought originally in the Geneva Circuit Court, the case was transferred to the Montgomery Circuit Court on Conservation's motion.¹

The plaintiffs' complaint contained two counts. Count one asserted a claim in detinue seeking possession of 80 pine logs physically in the possession of Forestry and Conservation, alleged to have been recovered after being "sunk while being rafted down the Pea River, a tributary of the Choctawhatchee River," or, alternatively, their value, along with damages for their wrongful detention. Count two sought a judgment declaring the plaintiffs to be the owners of all logs still located in the beds of the Pea River and the Choctawhatchee River in Geneva, Coffee, and Dale Counties, Alabama, bearing certain "brands," as depicted by an exhibit to the complaint, "and all unmarked logs that were rafted with the branded logs."

The exhibit was a copy of a document executed by Bruner, as president of Riverbend, on May 11, 1998, declaring that "pursuant to Florida Statute 536.14" Riverbend had adopted certain "marks, brands, and stamps to distinguish and designate its ownership on floating or sunk lumber, logs and timber in the rivers, streams, or water courses of [Florida]." The document stated that the brands were "to be" stamped, branded, or cut into the ends or sides of the logs. Hand drawn on the face of the document were 25 "brands," 11 of which consisted of capital letters of the alphabet, 4 of which were basic geometric shapes, 2 of which were Greek letters, one of which was the numeral "3," and the remaining 5 of which were of random design, e.g., a star, a heart, etc.

The plaintiffs did not purport to bring the detinue claim as a statutory action pursuant to § 6-6-250 et seq., Ala.Code 1975, because their complaint did not ask for seizure or possession of the logs in advance of a final judgment. This fact presents no procedural impediment, however, because "[c]ommon-law detinue still exists in this state and does not involve recovery of property at the time of suit but only after judgment." Richardson v. First Nat'l Bank, 46 Ala.App. 366, 371-72, 242 So.2d 676, 680 (1970). Forestry filed a motion to dismiss, asserting, among other things, that it made no claim to the logs and that it was simply storing the logs at Conservation's request. Conservation filed an answer denying all allegations of the detinue count and, as to the declaratory-judgment count, denying that the plaintiffs had any ownership interest in the still submerged logs.² Conservation admitted that it claimed ownership of the logs.

Forestry moved for a summary judgment, supported by the affidavit of the deputy legal counsel for Conservation, attesting that "[i]n November of 1997, employees of the Department of Conservation took possession of approximately eighty sunken logs that were being illegally removed from the Pea River in Geneva County, Alabama" and asserting further that Conservation had requested the local Forestry office to allow Conservation to "temporarily store the logs" on its premises. The affidavit acknowledged that after the plaintiffs filed this action, Forestry had requested Conservation to move the logs to another location, but that, because Conservation could not find another suitable location and was concerned about possible damage in transport, it had not removed them. Forestry asserted that it should be dismissed from the case "except possibly for the purpose of injunctive relief only, to make the logs available as the Court directs."

The plaintiffs responded to Forestry's motion; their response indicated that they had no objection to Forestry's "being dismissed with respect to the claim for money damages" but that it should "remain in the suit for the purpose of being required to comply with any injunctive relief which might be granted to Plaintiffs in this cause." However, at no time has the complaint contained a request for injunctive relief.³

Conservation filed its own motion for a summary judgment supported by excerpts from the March 1, 2002, deposition of Bruner and an affidavit of Alton Reddick, a resident of Bruce, Florida, who is engaged in the logging business. Reddick attested that he was personally involved in the retrieval in 1997 of the 80 logs from "the bottoms of the navigable waterway known as the Pea River, in the State of Alabama" at a point approximately 3 to 4 miles above the Florida state line and that Bruner "was not present at the time of any of the logs ... were retrieved from the waterbottoms, and he did not give me any direction or information as to the location of these logs." Bruner testified in his deposition to the following: He knew Reddick and the three individuals who worked with Reddick to take the logs out of the river, but they were not working for Bruner. "I had talked with them about the logs, but I wasn't working with them, no... the best I can remember, I was going to buy the logs from them. Best I can remember it." One of the men told him that they had retrieved the logs from the tiny portion of the Pea River that dips down into Florida at the southern border of Geneva County. "I wasn't there. They say they came out of the Florida part of the Pea River." Bruner acknowledged that it was fair to say that the logs had "probably been sitting there for a hundred years in these river beds." He did not dispute that the rivers involved in this case are navigable. He did not have "any kind of documents or anything to indicate that these logs ... were bought by anybody in Florida, originally."

Bruner based his claim of ownership to the logs on a collection of documents attached to his deposition as one exhibit. Two of the papers reflected that J.J. McCaskill and Co. ("McCaskill") had recorded declarations in Walton County, Florida, in 1887 and 1889, respectively, stating that McCaskill had "adopted" certain symbols depicted on the declarations as its log and timber brands. The brands depicted coincide with the first 20 of the 25 brands listed on the exhibit to the complaint. Another of the documents was a May 20, 1991, quitclaim deed from Angelina M. Levy, an heir of the McCaskills, quitclaiming to Granger Bruner, Bruner's father, all logs bearing the brands shown in the 1887 and 1889 declarations, "situate, lying and being in the County of Walton, Washington, Holmes & Bay, State of Florida... lying in, along or under the Choctawhatchee River" and its tributaries. Also included in the collection of documents was a "bill of sale" from Granger Bruner to Riverbend, assigning all of his rights in the timber brands conveyed to him by Levy. The rest of the documents consisted of declarations of the adoption of various timber brands, "to be stamped, branded or cut into the ends or sides of logs," executed by Bruner as president of either Riverbend or Bruner Lumber. (Emphasis supplied.) The declarations were dated at various times from April 30, 1996, to April 30, 2000; each was recorded in a county in Florida. Some of the brands were the same as those included in the 1887 and 1889 declarations, but others were completely different. Bruner acknowledged at his deposition that the collection of documents constituted all of the documents "that I can think of at this time" evidencing his claim of ownership to the logs involved in this action.

Florida statutes §§ 536.13 through 536.16 (including § 536.14 referenced in each of the declarations) provide as follows:

"536.13 Stamp or brand for logs

"Any person engaged in this state in the business or getting out, buying, selling, or manufacturing saw logs, may adopt a stamp or brand for such logs, of such design as she or he may select.

"536.14 Brands to be recorded by clerk of circuit court

"A person may execute a written declaration that she or he has adopted a brand, describing it, and after acknowledgment of such declaration before any officer authorized to take acknowledgments of deeds, may have the same recorded by the clerk of the circuit court in the record of mortgages, in any county in which she or he may desire to own or have in possession saw logs.

"536.15 May prevent use by others

"Any person who has had her or his brand recorded in any county, may prevent other persons from using the same in said county by a writ of injunction, restraining such use.

"536.16 Prima facie evidence of ownership

"Any log found in any county branded with a brand recorded in said county by any person shall be deemed prima facie to be the property of such persons."

Bruner testified that "from everybody that I've talked to in Alabama says that Alabama didn't have brands" and he acknowledged that anyone placing logs in rivers for down-river flotation could imprint on them brands identical to the ones he had recorded. "They could be used anywhere anybody wanted to use them." He testified that in Florida there was a permit system whereby a person could purchase a permit to retrieve logs from navigable waterways in that state. He had "called up a couple of times to Alabama" to explore the necessity of a permit for getting logs out of Alabama riverways but "[t]hey said they weren't issuing any permits. So I did not pursue it any...