Camp v. Milam

• Decision Date: 25 January 1973
• Citation: 277 So.2d 95,291 Ala. 12
• Parties: Edwin F. CAMP and Margaret R. Camp v. Jay E. MILAM et al. SC 60.
• Court: Alabama Supreme Court

Page 95

277 So.2d 95

291 Ala. 12

Edwin F. CAMP and Margaret R. Camp v. Jay E. MILAM et al.

SC 60.

Supreme Court of Alabama.

Jan. 25, 1973.

Rehearing Denied May 10, 1973.

George S. Brown, Birmingham, for appellants

[291 Ala. 14] Robert E. Parsons, Birmingham, for appellees.

JONES, Justice.

This is an appeal from the Circuit Court of Jefferson County, In Equity, brought by the Complainants and Cross-Respondents (Camps) from an adverse decree wherein the Respondents and Cross-complainants (Milams) were awarded certain water rights by way of an easement running with the land in an artificial lake located solely on the property of the Camps.

A summary of the facts, as revealed by the record, is as follows:

In 1957 the Camps purchased a tract of land in Jefferson County, Alabama, for $9,000.00. Later the Camps wished to have an artificial lake constructed on the property. Mr. Camp discussed the plan to build a lake with Milam, who was an engineer and in the construction business. Milam offered to construct the dam for the Camps in return for part of the land and the right to use the lake. On October 26, 1959, Camp and Milam signed a written agreement which provided that Milam would construct an earthen dam on the Camp's property in exchange for 40 acres of the land, the description of which to be mutually agreed upon at a later date. The said agreement also contained the provision that 'free access to the entire lake will be available to both parties, herein'.

The dam was completed sometime in 1960 or 1961, and the Milams began to use the lake from time to time for recreational purposes. In 1965 the Milams decided to build a home at the lake and asked the Camps to convey the land as provided in the written agreement of October 26, 1959. The Camps did convey, at the Milams' request, a tract of about 25 acres in June, 1965, to A. C. Barrett & Associates, Inc. (Associates), a corporation owned and controlled by the Milam family. The deed executed by the Camps stated therein that the conveyance was subject to the restrictions and limitations contained in a certain written agreement between the Camps and 'Associates' dated June 15, 1965. This agreement provided, inter alia, that the Camps would convey the described realty; that the Camps could at any time raise the level of the lake from 871.00 to 881.00; that there would be no construction on the property lying between the lake and the 'Associates" property (the Camps had retained a 10-foot strip of land all around the lake for use as a walkway or roadway); mutual easements would be granted to insure free access to their respective property.

The Milams completed their home on the 25-acre tract in July, 1965, and on August 1, 1965, that property was conveyed to the Milams by 'Associates'. Since 1965, the Milams have constructed a boathouse and stable on land owned by the Camps with their knowledge and consent. The lake has been used by the Milams for recreational purposes continually from the time of its completion until 1970, when the Camps sent the sheriff in to remove the Milams from 'their' lake.

The bill of complaint in this case was originally filed by the Camps against the Milams and subsequently amended to add 'Associates' as a party respondent. The bill charged that the Milams had been making use of a lake lying wholly on property owned by the Camps in such a manner as to interfere with the use and enjoyment of the lake by the Camps; specifically, by constructing a boathouse on the shore of the lake on property which was in exclusive possession of the Camps, and operating a motor boat in such a manner as to deprive the Camps of free use of the lake, and in building a stable on the Camps' property.

The prayer of the bill asked the court to declare that the Camps had sole and exclusive rights to the use of the lake and that the respondents had no interest therein. The bill also prayed that the court issue a permanent injunction barring the respondents from the use of the lake and ordering them to remove the stable and boathouse constructed upon the Camps' property.

The Milams filed an answer and crossbill in which they asserted that the Camps, on October 26, 1959, had agreed that the Milams, their heirs and assigns, would have free access to the lake and full water rights in the lake appurtenant to the ownership and title to certain real property described in a warranty deed deated June 15, 1965, executed by the Camps to 'Associates'. The cross-bill further averred that in reliance upon said agreement of October 26, 1959, the Milams constructed a dam to make the lake and that from the date of the completion of the dam until the present the Milams and 'Associates' had exercised full possessory rights in and to all water rights of the lake including, but not limited to, fishing and swimming therein and operating power motor boats and skiing thereon.

The cross-bill further averred that in reliance on the agreement of October 26, 1959, the Milams constructed for themselves and for the benefit of 'Associates' a brick home at a cost of approximately $55,000.00 and a basement at a cost of approximately $4,000.00. The cross-bill further alleged that the water rights in the lake were necessary and incident to the real property conveyed in said deed from the Camps to 'Associates' as to greatly and materially enhance the value of the property and that the water rights were necessary and incident to the reasonable and convenient use and enjoyment of the real property so conveyed. The cross-bill also averred that the water rights constituted an easement and covenant running with the land.

The prayer of the cross-bill asked the court to decree that 'Associates', its successors and assigns (Milams), own and have complete and full water rights in the lake and that the said water rights were an easement appurtenant to and running with the land conveyed in said deed.

'Associates" answer and cross-bill set forth substantially the same facts as the cross-bill of the Milams, and contained substantially the same prayer.

The trial court rendered its final decree in which the relief sought by the Camps was denied in its entirety. The court further decreed that 'Associates', its successors and assigns (Milams), own and have title to all water rights in and to the lake and that such water rights are an easement appurtenant to and running with the real property conveyed by warranty deed dated June 15, 1965, from the Camps to 'Associates'. The decree also states that the The Camps claim error and contend that they have exclusive ownership of the entire property on which the lake in question is situated and that no easement or other interest in and to said lake has been granted to the Milams, nor have the Milams otherwise acquired such interest. The Camps further contend that the use made of said lake by the Milams was at best a mere license revocable at the pleasure of the Camps.

Camps own and have title to all water rights in the lake, such water rights also being an easement appurtenant to and running with the real property owned by the Camps. The Camps' application for rehearing having been denied, they bring this appeal.

The Milams, on the other hand, assert that they own full and complete water rights common with that of the Camps, and that the chancellor correctly construed the deed of June 15, 1965, giving effect to the intent of the parties as set forth in the final decree.

The court is of the opinion that the facts of this case, in keeping with the law applicable thereto, do not support the contentions of either party, we find no basis in the law for the legal conclusion of the court below that the Camps conveyed, or attempted or intended to convey, an easement to the water rights of said lake to 'Associates' or its assigns (Milams).

The rules of construction of a written contract, including a deed, are well established by our cases. Where a court of equity is called upon to construe a deed (or other written contract), in ascertaining the intention of the parties, the plain and clear meaning of its terms must be given effect to, and the parties must be legally presumed to have intended what is plainly and clearly set out.

In the absence of fraud or mistake, it is only where the instrument is doubtful of meaning, or its language ambiguous, that the court may look beyond the 'four corners' of the instrument to give clarity and specificity of meaning. Babcock v. Smith, 285 Ala. 557, 234 So.2d 573; Taylor v. Hancock, 227 Ala. 645, 151 So. 596.

Our cases consistently hold that an easement can be created in only three ways: by deed; by prescription; or by adverse use for the statutory period. Kirkland v. Kirkland, 281 Ala. 42, 198 So.2d 771; Kratchoville v. Cloverleaf Plaza, Inc., 276 Ala. 562, 165 So.2d 112. Since the latter two do not apply (use by permission in this case is neither adverse nor exclusive), we must look to the deed and referenced agreement made between the parties on June 15, 1965.

Our difficulty here lies in the fact that there is nothing unclear or ambiguous in either the deed or the referenced agreement, neither of which contain any language purporting to convey as easement in the lake. The trial court, then, was powerless to declare a new and different contract into which the parties did not enter. Holt v. Long, 234 Ala. 369, 174 So. 759; Hattemer v. State Tax Commission, 235 Ala. 44, 177 So. 156.

Therefore, the trial court's interpretation of the deed, as set forth in its final decree, constitutes a reformation of the contract between the parties which is unauthorized by either the pleadings or the proof. Atlas Assurance Co. Limited, of London, England v. Byrne, 235 Ala. 281, 178 So. 451.

Having thus concluded, however, we are likewise constrained to the further conclusion that the relief sought by the complainants is also unauthorized. We hold that a legal interest did pass from the Camps to the Milams--not the granting of an...