Chalkley v. Tuscaloosa County Comm'n, 1070767.

• Decision Date: 30 September 2009
• Docket Number: 1070767.
• Parties: Shirley Shepard CHALKLEYv.TUSCALOOSA COUNTY COMMISSION.
• Court: Alabama Supreme Court

34 So.3d 667

Shirley Shepard CHALKLEYv.TUSCALOOSA COUNTY COMMISSION.

1070767.

Supreme Court of Alabama.

Sept. 30, 2009.

[34 So.3d 667 669]

Isaac P. Espy of Espy, Nettles, Scogin & Brantley, P.C., Tuscaloosa, for appellant.

Dennis Steverson, Tuscaloosa, for appellee.

MURDOCK, Justice.

Shirley Shepard Chalkley appeals from a summary judgment entered in favor of the Tuscaloosa County Commission (“the Commission”) on her complaint seeking a declaratory judgment, injunctive relief, and damages related to Tuscaloosa County's refusal to maintain a storm sewer that runs underneath her property. We affirm the judgment of the trial court.

I. Facts and Procedural History

The parties agree that, for the purposes of this appeal, the facts are undisputed. Chalkley is the owner of an interest in lot 98 of the Mallard Creek subdivision (“the subdivision”), located in an unincorporated area of Tuscaloosa County (“the County”). The plat of the subdivision was approved by the County engineer on September 28, 1987, and was filed for record on November 2, 1987. A note on the plat provided:

“All easements on this plat are for public utilities, sanitary sewers, storm sewers, and storm ditches, and may be used for such purposes to serve property both within and without this subdivision. No permanent structure or other obstruction shall be located within the limits of a designated easement.”

A 20-foot-wide drainage easement designated in the plat extends across lot 98 and also across lots 97, 99, 100, and 101. A concrete storm sewer was installed in the drainage easement by the developer of the subdivision. The storm sewer runs through a part of lot 98.

On February 24, 1993, the Commission adopted a resolution that provided, in pertinent part:

“1. That the County accept the streets, together with drainage structures in, and which are a part of, said streets which are located in dedicated street rights-of-way, for maintenance by the Tuscaloosa County Commission. The drainage structures described herein are those structures which are a part of or are located in the streets (curbs and gutter, catch basins, flumes and pipes) and does not include any natural waterway which drains surface water in the area.”

The parties agree that on the face of the resolution the Commission accepted for maintenance only those parts of the storm-

[34 So.3d 667 670]

drainage system that are located within the street rights-of-way in the subdivision.

A large sinkhole developed in Chalkley's property, which Chalkley alleges was cased by the failure of the storm drain running underneath the property. Chalkley notified the County of the problem, but it declined to investigate or to repair the damaged storm drain on the basis that the County did not accept the responsibility for maintaining the parts of the storm drain located on private property.

Chalkley subsequently sued the Commission, alleging that the failure of the storm drain created a dangerous condition on her property and asking that the trial court declare that the County was responsible for repairing the storm drain and for damage to her property. The Commission filed a motion for a summary judgment on the basis of the February 24, 1993, resolution; Chalkley opposed the motion.

On February 25, 2008, the trial court entered a summary judgment in favor of the Commission and against Chalkley, concluding that Chalkley's request that the trial court find “as a matter of ‘public policy’ ” that the County should be responsible for maintenance of the entire storm-drainage system was a decision that “requires fact-finding and an analysis of the costs/benefits to the public that is appropriately made, under our system, by the legislative branch.” The trial court reasoned that

“[a]dopting Ms. Chalkley's argument in this case would mean that a court, based on its own policy considerations of what is in the best interest of the public, would require a legislative entity to acquire responsibility and liability for structures under private land. It may well be wise, expedient, and appropriate to require entire subdivision drainage systems to be under the control of the approving governmental entity, but that is a decision to be made by the County, not the judiciary. Therefore, judgment is entered in favor of [the Commission].”

II. Standard of Review

[1] [2] “An order granting or denying a summary judgment is reviewed de novo, applying the same standard as the trial court applied. American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 811 (Ala.2004).... Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So.2d 812, 815 (Ala.1995).”

Continental Nat'l Indem. Co. v. Fields, 926 So.2d 1033, 1034-35 (Ala.2005).

III. Analysis

Chalkley contends that the storm-drainage system was installed when the subdivision was built and that it should be viewed as a single, continuous structure for public benefit. She argues that because the storm-drainage system is one structure, the Commission, as a matter of public policy, should not be allowed to accept responsibility for parts of the system rather than the system as a whole. Chalkley contends that the law and existing precedent require this result.

Specifically, Chalkley first argues that the County is the proprietor of a “dominant tenement” in relation to the easement that runs through her property and that, therefore, the County has the duty to maintain and to repair the drainage system built on the easement. In support of this proposition, Chalkley cites Mountain Brook Estates, Inc. v. Solomon, 247 Ala. 157, 23 So.2d 1 (1945), and, specifically, a portion of that opinion in which the Court stated:

[34 So.3d 667 671]

“The duty to maintain and repair, if it exists at all, arises out of proprietorship of the dominant estate, and its appurtenances, and where the easement exists for the sole benefit, use and enjoyment by the proprietor of the dominant estate, the proprietor of such estate ordinarily is liable for the cost of maintenance and repair.”

247 Ala. at 162, 23 So.2d at 4.

In Solomon, Mountain Brook Estates, Inc. (“the developer”), at one time owned all the property upon which the Mountain Brook Estates subdivision was built. The developer divided the property into lots for the purpose of building residential estates and selling them for a profit. Pursuant to this goal, the developer built a drainage ditch across the entire property and reserved an easement on each lot on which the drainage ditch was located. The developer then sold the lots, eventually selling one to David Solomon 13 years after the drainage ditch had been installed. When water from the drainage ditch backed up on Solomon's property, he filed an action for injunctive relief against the developer, contending that the drainage ditch was inadequate for draining the amount of water the area received and asking the trial court to order the developer to repair the drainage ditch.

This Court, in the course of explaining the law of easements, stated the above-quoted rule concerning the responsibility of the dominant estate of an easement. The Court went on to explain, however:

“It is very clear from the facts alleged in the bill that the easement and drainage ditch did not exist solely for the benefit of the dominant estates, but it was created and established as well to preserve the property which the complainant purchased, and upon which he erected his home. But for said ditch, the property purchased and owned by [Solomon] would have suffered the ravages of the drainage system [from higher elevation lots]. When [Mountain Brook Estates, Inc.,] sold and conveyed all of said dominant estates in the sector, it ceased to be the proprietor of said dominant estates, and the responsibility of repair and maintenance, if it ever existed, passed to the grantees or ceased to exist.”

247 Ala. at 162, 23 So.2d at 4-5.

Thus Solomon itself explains why Chalkley's argument that the County holds a dominant estate that would make it responsible for maintaining and repairing the storm-drainage system fails. First, it is debatable that a “dominant estate” exists in the situation presented here. Further, there is no doubt that the easement does not exist “solely” for the benefit of the County; it clearly benefits Chalkley and every other owner of a lot in the subdivision. Consequently, the duty to maintain and repair the storm-drainage system does not fall upon the County merely because the County also benefits from the easement.

Chalkley also contends that this Court's precedent supports the idea that the County cannot accept only in part a dedication of property for public use and that, if the County accepted part of the property, it must be said to have constructively accepted the responsibility for the whole of the property. ¹ In so arguing, Chalkley misreads our cases.

Chalkley is correct that the approval of the subdivision plat by the County engineer, along with the notation in the plat stating that “[a]ll easements on this

[34 So.3d 667 672]

plat are for public utilities, sanitary sewers, and storm ditches, and may be used for such purposes to serve property both within and without the subdivision,” constituted a dedication of property for public use. See, e.g. Montabano v. City of Mountain Brook, 653 So.2d 947, 949 (Ala.1995) (noting that “[t]he recording of a plat or map ... constitutes a valid dedication to the public of all public places designated in the plat or map”). “A ‘dedication’ is a donation or appropriation of property to the public use by the owner.” City of Fairfield v. Jemison, 283 Ala. 462, 464, 218 So.2d 273, 275 (1969).

It also is true that a grantor is limited in the types of restrictions that can be placed on a dedication of property for public use.

“ ‘An owner may grant whatever estate he sees fit, and may annex

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