Burnett v. Munoz
| Decision Date | 13 December 2002 |
| Citation | 853 So.2d 963 |
| Parties | Milford W. BURNETT and Evelyn Burnett v. Miguel A. MUNOZ and Bernice Blackwell Munoz. |
| Court | Alabama Court of Civil Appeals |
Linda L. Howard of Laurence P. Sutley & Associates, P.C., Foley, for appellants.
Bayless E. Biles of Wilkins, Bankester, Biles & Wynne, Bay Minette, for appellees.
Miguel A. Munoz and Bernice Blackwell Munoz sued coterminous landowners Milford W. Burnett and Evelyn Burnett. In their complaint, the Munozes sought a judgment declaring a strip of land located between their property and that of the Burnetts to be a public road. For the purposes of this decision, we will refer to the strip of property at issue as a "road"; in doing so, we are not deciding whether the road was a public or a private road.
The Burnetts answered the Munozes' complaint and denied that the road was a public road. The trial court conducted a hearing at which ore tenus evidence was presented. On April 4, 2002, the trial court entered a judgment declaring the road to be a public road. The Burnetts filed a postjudgment motion; the trial court denied that motion. The Burnetts appealed. The case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.
The parties' properties are located in Baldwin County; the record does not indicate whether the road and the parties' properties are located in a municipality. The Burnetts have owned their property for 40 years and have lived on the property for 11 years. The Munozes have owned and resided on their property for 27 years. The road at issue in this appeal runs between two parcels of real property owned by the parties and provides access for the Munozes to that part of their property on which the house in which they reside is located. The road also allegedly provides access to two additional parcels of real property, one of which is owned by the Burnetts and the other by the Munozes.
The ore tenus hearing primarily focused on evidence presented by the parties regarding their dispute over the width of the road. The Munozes contend that the road is 30 feet wide. The Burnetts contend that the road is actually only 15 feet wide and that the additional 15 feet claimed by the Munozes constitutes an encroachment on their property.
The record indicates that the road is unpaved. Miguel Munoz testified that he has maintained the road for 27 years. Also, Munoz testified that the county has installed a "culvert" under the road and that the culvert is 30 feet long.
At one point on the road, a large oak tree stands in what the Munozes contend is the middle of the 30-foot-wide road. Munoz testified that one may drive a vehicle on the road to either the left side or the right side of the tree. The Burnetts disputed whether it has always been possible to drive around the left side of the tree.
The record does not clearly indicate the length of the road. However, the road extends past the property on which the Munozes' house is located, past a parcel owned by the Burnetts that is located directly behind the property on which the Munozes' house is located, and ends at a parcel of farmland owned by the Munozes. The Munozes presented evidence indicating that they or their predecessors in interest had used the road to access their properties since at least the 1960's; some evidence was presented indicating that the Munozes' predecessors in interest had used the road to access the property for approximately 50 years. The record also contains some vague testimony indicating that at some point, two "Jim Walter homes"1 were located on the Munozes' property and that the residents of those houses used the road to access those houses. Those houses are no longer located on the property; it is unclear from the record when those houses were removed from the property.
In its judgment, the trial court found that the evidence presented at the ore tenus hearing established that the road had been used as a public road for more than 50 years.
Rule 19(a), Ala. R. Civ. P., provides in part:
It is well settled that the failure to join necessary parties is an issue that may be raised for the first time on appeal by the parties or by an appellate court ex mero motu. Boles v. Autery, 554 So.2d 959 (Ala.1989)
; Long v. Vielle, 549 So.2d 968 (Ala.1989); J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981); Mead Corp. v. City of Birmingham, 350 So.2d 419 (Ala.1977); Box v. Box, 253 Ala. 297, 45 So.2d 157 (1950); Amann v. Burke, 237 Ala. 380, 186 So. 769 (1939). The failure to join a necessary party is a jurisdictional defect. Long v. Vielle, supra (citing Rogers v. Smith, 287 Ala. 118, 248 So.2d 713 (1971)).
Our supreme court has discussed the issue of necessary parties in actions involving a dispute regarding a public road. In Holland v. City of Alabaster, 566 So.2d 224 (Ala.1990), the City of Pelham vacated a public road that was located within its city limits. That road was abutted on both sides by land owned by Holland; after the City of Pelham vacated the road, Holland blocked access to the road. The City of Alabaster and a person who had used the road sued Holland, seeking access to the road. The trial court, among other things, set aside the City of Pelham's vacation of the road and restrained Holland from blocking access to the road. On appeal, Holland maintained that the trial court erred in failing to join the City of Pelham as a necessary party to the action. Our supreme court agreed. The court held that the trial court should have joined the City of Pelham as a necessary party under Rule 19(a), Ala. R. Civ. P., because the trial court was required to have jurisdiction over the City of Pelham before it could enter any ruling that affected the City of Pelham's interest in the property at issue in that case. Holland v. City of Alabaster, ...
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