City of Dothan v. Eighty-Four West, Inc.

• Citation: 738 So.2d 903
• Parties: CITY OF DOTHAN v. EIGHTY-FOUR WEST, INC., and Quin E. Flowers, Jr. Spann Farm Partnership, Ltd. v. Eighty-Four West, Inc., and Quin E. Flowers, Jr.
• Decision Date: 25 June 1999
• Court: Alabama Court of Civil Appeals

738 So.2d 903

CITY OF DOTHAN v. EIGHTY-FOUR WEST, INC., and Quin E. Flowers, Jr.

Spann Farm Partnership, Ltd. v. Eighty-Four West, Inc., and Quin E. Flowers, Jr.

2936.

Court of Civil Appeals of Alabama.

June 25, 1999.

D. Taylor Flowers of Lewis, Brackin & Flowers, Dothan, for appellant Spann Farm Partnership, Ltd.

Jere C. Segrest, Kevin Walding, and Tina M. Stamps of Hardwick, Hause & Segrest, Dothan, for appellees.

BEATTY, Retired Justice.

The plaintiff City of Dothan and the defendant Spann Farm Partnership, Ltd., appeal from a summary judgment entered in favor of the defendants Eighty-Four West, Inc., and Quin E. Flowers, Jr., in a declaratory action to construe an easement. We reverse and remand. This cause is before this court pursuant to § 12-2-7, Ala.Code 1975.

The property involved in this appeal is located in the City of Dothan and consists of about 400 acres that once belonged to the Couch Sand Company. This property was later acquired by Quin E. Flowers, Jr. ("Flowers"); his sister, Juleann Flowers Torrence; and her husband, Samuel M. Torrence (the "Torrences"), as tenants-in-common. In 1990, Flowers sued the Torrences for a sale of the 400-acre tract of real estate and a division of the proceeds. That lawsuit was settled, and as part of the settlement agreement Flowers and the Torrences agreed to a division of this land. The division agreement called for Flowers to take ownership of an eastern parcel and for the Torrences to take ownership of a western parcel, each of which consisted of about 200 acres.

As part of the settlement agreement, in May 1991 the Torrences conveyed to Flowers a 100-foot-wide easement across their Spann Farm development. The "extent and purpose of [this] easement is to allow for the drainage of surface water from Flowers's property whereby such surface water will be allowed to follow the natural drainage channel on [the] Torrences' property...."¹ The settlement also called for Flowers to convey to the Torrences a sanitary-sewer easement across a portion of his property. Both the 100-foot surface-water-drainage easement and the sanitary-sewer easement were duly recorded in the Houston County Probate Office. It is undisputed that the parties have had several developmental studies prepared that considered how the land in question might be used in the future, including the possibility that it would be developed as a residential subdivision.

It is also undisputed that at least two of these studies, including one conducted just before the parties divided the original 400-acre tract, contemplated the effect surface-water drainage would have on the development of the 400-acre tract. Because these studies are not in the record we are unable to determine what conclusions these studies reached.

Sometime before July 29, 1993, Spann Farm completed development of Spann Farm Subdivision. Flowers began development of his eastern parcel in 1995 by forming Eighty-Four West, Inc. (collectively, Flowers and the corporation will be called the "Flowers Defendants"), and conveying approximately 107 acres of his 200 acres to it. The 107 acres became known as Grove Park Subdivision. Flowers retained personal ownership of the remaining 93 acres of the eastern parcel and of the drainage easement. The 93-acre parcel lies to the east of Grove Park Subdivision, which lies to the east of Spann Farm Subdivision. The surface-water drainage easement runs from the southwest corner of the Grove Park Subdivision onto Spann Farm Subdivision.

Sometime before April 1997, Flowers submitted a certain plat and plans for Grove Park Subdivision to the City of Dothan Planning Commission. These plans provided for the construction of roads, storm sewers, a water system, and a sewage system. In April 1997, the Planning Commission approved these plans and the Flowers Defendants began construction in Grove Park.

On or about August 20, 1997, Flowers applied for a grading permit to build an earthen dam on the 93-acre parcel that he personally owns, to prevent surface water from the lands owned and occupied by the Sony Magnetic Products plant and an electrical substation owned by the City, adjoining and to the east of Flowers's property, from flowing onto that property and the Grove Park Subdivision and damaging it. Flowers's permit request is not in the record. Although the City acknowledges in its complaint that Flowers has applied for a grading permit, the city engineer avers by affidavit, "I have no recollection of nor can I find any record of a grading permit application having been submitted to the city engineer for approval of construction of said dam. I am familiar with an incomplete design plan depicting a proposed filling and dam concept that was submitted to the Planning Commission."

Also on or about August 20, 1997, the Flowers Defendants submitted an additional plat and plans for Grove Park Subdivision to the Planning Commission.

The nature of the documents that the Flowers Defendants submitted to the Planning Commission is disputed. The Flowers Defendants assert in their brief to this court that they submitted the preliminary plat and plans for Grove Park Subdivision Phases I, II, and III to the Planning Commission in April 1997, and that the City approved these plans. The Flowers Defendants further aver that the second set of documents they filed with the Planning Commission were construction plans "for all phases of the subdivision development." However, Flowers avers in his first affidavit that he submitted "the subdivision plat and plans for Grove Park Subdivision Phase I" to the Planning Commission in April 1997, and that he "applied for approval of the plat and plans for Grove Park Subdivision Phases II and III" after the plans for Phase I were approved. The City's complaint alleges that it approved the "construction plans" for Grove Park Subdivision Phase I in April 1997 and that the Flowers Defendants then submitted a request for approval of "construction plans" for Grove Park Subdivision Phases II and III. The respective plats and plans also were not put into evidence and they are not in the record.

The disposition of the August 20, 1997, plat and plans is also unclear. The City argues in its brief to this court that it had conditioned the approval of the plat and plans "upon Flowers's completion of design of a surface water management system pursuant to local ordinance." The City claims that Flowers refused to design such a system because the May 1991 surface-water-drainage easement does not limit the volume of water that flows through it and, thus, eliminates the need for Flowers to design such a system. The Flowers Defendants argue that they have submitted construction plans to the city engineer for his approval and that the construction plans include a storm-water-management system.

The City did not approve the August 20, 1997, plat, plans, and grading permit. Rather, on August 28, 1997, it filed a complaint for a declaratory judgment, against Eighty-Four West, Inc., and Spann Farm Partnership, Ltd., seeking clarification as to (1) the volume of surface-water runoff that is allowed to pass through the May 1991 easement across the property owned by Spann Farm, and (2) whether the City was required to grant Flowers's application for a grading permit that would allow Flowers to construct an earthen dam on his 93-acre parcel to prevent surface-water runoff from higher landowners from coming onto and damaging his two parcels of land. The City alleged that a ruling regarding the volume of surface-water runoff allowed to flow through the May 1991 drainage easement "is necessary for review of the design and approval of the storm water management system for the development of Phases II and III of Grove Park Subdivision."

The City later amended its complaint, requesting a declaration of the parties' respective rights in a 50-foot sewer and utility easement that belonged to the City and that was located in the area where Flowers's earth work was proposed.

Eighty-Four West, Inc., moved to join Flowers as a defendant to this action under Rule 19, Ala. R. Civ. P., and the court granted this motion. The Flowers Defendants answered by raising various legal defenses and by asserting that the May 1991 easement is clear, unambiguous, and not subject to construction. The Flowers Defendants further asserted that the "common enemy" rule of law entitled them to build the earthen retaining wall or dam to prevent surface-water runoff from coming onto and damaging Flowers's 93-acre parcel and the Grove Park property. The Flowers Defendants denied that the proposed dam would unlawfully or unreasonably interfere with the City's 50-foot sewer and utility easement.

No discovery was made. On January 14, 1998, the Flowers Defendants filed a motion for a summary judgment, which they supported by the pleadings, Flowers's first affidavit, and the exhibits thereto. The Flowers Defendants also filed a brief in support of their summary judgment motion. After he described how the May 1991 easement came into being, Flowers averred that before he and the Torrences divided the original 400-acre tract, they had a developmental study prepared that addressed the possibility that the land would be developed for residential use and that considered the effect that surface-water drainage would have on the land. Flowers further averred that he had applied for a grading permit to construct a retaining wall or dam to prevent water from the Sony plant, Flowers Hospital, and an electrical substation owned by the City and lying to the east from flooding his property and the Grove Park Subdivision property.

Flowers presented no evidence that the water at issue is surface water. Flowers made no attempt to prove, for example, that water normally did not occur in the drainage ditch or that the watercourse that the City defined as a "stream" did not have a source and that it contained water only when it rained.

The City responded...