Cove Properties, Inc. v. Walter Trent Marina, Inc.

• Decision Date: 22 August 1997
• Citation: 702 So.2d 472
• Parties: COVE PROPERTIES, INC. v. WALTER TRENT MARINA, INC. 2960745.
• Court: Alabama Court of Civil Appeals

Page 472

702 So.2d 472

COVE PROPERTIES, INC. v. WALTER TRENT MARINA, INC.

2960745.

Court of Civil Appeals of Alabama.

Aug. 22, 1997.

Norton W. Brooker, Jr., and William E. Shreve, Jr., of Lyons, Pipes & Cook, P.C., Mobile, for appellant.

Mylan R. Engel and Edgar P. Walsh of Engel, Walsh & Associates, Mobile, for appellee.

ROBERTSON, Presiding Judge.

Cove Properties, Inc. ("Cove"), appeals from a judgment of the Baldwin County Circuit Court dismissing, pursuant to Rule 12(b)(6), Ala.R.Civ.P., Cove's claims against Walter Trent Marina, Inc. ("Trent"), on the basis that those claims are barred by the applicable statute of limitations. We affirm in part, reverse in part, and remand.

Cove filed its complaint on October 17, 1996, alleging that it and Trent are adjoining landowners of property fronting Terry Cove in Bay Ornocor, a body of water located in Orange Beach, Alabama. Cove further alleged that on July 2, 1993, it became aware that Trent had erected a pier that crossed a line extending into the water of Terry Cove from the parties' land boundary. Cove's complaint contains five counts, labeled "causes of action": (1) a request for a declaration that Cove "has paramount property rights in and to all that portion of Terry Cove lying westwardly of the projection of the [parties'] boundary line"; (2) a claim for an unspecified amount of damages; (3) a request for injunctive relief; (4) a claim for an unspecified amount of "just compensation," on the basis that Trent has engaged with the state in joint action that has effected an unlawful taking of its property rights; and (5) a claim under 42 U.S.C. § 1983 for an unspecified amount of damages and for attorney fees based upon alleged action by Trent "in active concert with the State of Alabama" in violation of the United States Constitution. ¹

Trent moved, pursuant to Rule 12(b)(6), Ala.R.Civ.P., to dismiss Cove's complaint, contending, among other things, that the claims therein were barred by Alabama's two-year statute of limitations governing injuries to the person or rights of another not otherwise specified (i.e., § 6-2-38(l ), Ala.Code 1975). The trial court heard oral argument and received written memoranda directed to the limitations issue, and subsequently entered a judgment dismissing Cove's complaint on the basis that "[t]his action is barred by the two-year statute of limitations." Cove appealed. ²

Our supreme court has held that a limitations defense "may be properly raised via [a Rule] 12(b)(6) motion where the face of the complaint shows that the claim is barred." Sims v. Lewis, 374 So.2d 298, 302 (Ala.1979). The standard for reviewing a Rule 12(b)(6) dismissal was set out in Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993):

"On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle [the pleader] to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [the plaintiff] may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986)."

We further note that this court reviews judgments and not opinions, and we will affirm a correct judgment on any valid basis, regardless of whether that basis was accepted or even considered by the trial court. Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981, 983 n. 1 (Ala.1992) (appellee "may offer in support of its judgment any argument supported by the record, whether that argument was ignored by the circuit court or rejected").

We now consider the allegations of Cove's various stated claims. All of the counts of Cove's complaint are derived from its claim to have riparian rights of access to the waters of Terry Cove ³ by virtue of its ownership of property directly facing Terry Cove. The Alabama Supreme Court has stated that "[a] riparian proprietor is one whose land is bounded by a navigable stream and among the rights he is entitled to as such are ... the right to make a landing, wharf or pier for his own use, or for the use of the public, subject to such general rules and regulations as the legislature may impose." Mobile Docks Co. v. City of Mobile, 146 Ala. 198, 204, 40 So. 205, 207 (1906) (quoting Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 U.S. 672, 3 S.Ct. 445, 27 L.Ed. 1070 (1884)). These riparian rights, among others, have been legislatively confirmed:

"The owner of riparian lands upon navigable waters in the state of Alabama may install in front of their respective riparian lands wharves, docks, warehouses, sheds, tipples, chutes, elevators, conveyors and the like for receiving, discharging, storing, protecting, transferring, loading and unloading freight and commodities of commerce to and from vessels and carriers, and may use their riparian lands in connection therewith and dredge out and deepen the approaches thereto, and may charge and collect reasonable tolls for the use thereof. All such structures are to be subject to such lines and limitations as may at the time of making such improvements be laid or placed by any authority of the United States, or of the state of Alabama who may have authority to control harbor and pier lines."

Ala.Code 1975, § 33-7-50.

Cove's first, second, and third claims are predicated on a theory that Trent's pier constitutes a continuing trespass and a taking of Cove's riparian rights. Drawing an analogy between its riparian rights to access the water fronting its lot and the rights of a fee simple landowner to possession of his or her land, Cove contends that these claims were subject to either the statute of limitations governing recovery of interests in land or the statute of limitations governing trespass to real or personal property, as opposed to the residual injury statute of limitations. While Alabama requires that all actions "for any injury to the person or rights of another not arising from contract and not specifically enumerated" be brought within two years, see Ala.Code 1975, § 6-2-38(l ), "[a]ctions for the recovery of lands, tenements or hereditaments, or the possession thereof" can be brought within 10 years of their accrual (id., § 6-2-33(1)), and "[a]ctions for any trespass to real or personal property" can be brought within six years (id., § 6-2-34(2)). Thus, we must determine whether Cove's complaint seeks "the recovery of lands, tenements, or hereditaments" or relief "for trespass to real property"; if either is true, then the trial court erred in dismissing this action in regards to the first, second, and third counts of Cove's complaint.

Under Alabama law, the riparian rights of landowners whose holdings abut running streams or other navigable waterways are hereditaments incident to the adjoining land, and equity will enjoin any direct interference with such rights, on the theory that such interference, if allowed to continue without interruption, will by prescription divest those rights from the aggrieved landowner. In Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 So. 78 (1889), the Alabama Supreme Court reviewed a judgment in favor of a lower riparian proprietor that enjoined an upper riparian landowner (a city water works) "from the consumption of the whole or any part of said stream for the use of said water-works in supplying the city, to the sensible injury or damage of the complainant, for any purpose for which he may now or in the future have use for said water," and a declaration that the lower landowner was entitled "to the reasonable use of the flowing waters of said stream, as against the defendant, whenever he shall need it." Although it was undisputed that the lower riparian proprietor had not utilized the water flowing on his property for any purpose before commencing his action against the water works, the Ulbricht court affirmed the judgment, holding in pertinent part:

"There is no principle of law better recognized, than that every riparian owner of lands, through which streams of water flow, has a right to the reasonable use of the running water, which is a private right of property. The right is one annexed and incident to the freehold, being a real or corporeal hereditament, in the nature of an easement, and must be enjoyed with reference to the similar rights of other riparian proprietors. It is, therefore, a qualified, and not an absolute right of property.

"....

"In this case, the defendant has diverted the water from the stream, and consumes it for the purpose of supplying the wants of a neighboring town. The diversion is rendered unlawful by the fact that it is for an extraordinary or artificial use, and is not restored to its natural channel, where it is accustomed to flow. The authorities speak with one voice in sustaining the proposition, that no person has a right to cause such diversion, and that it is a wrongful act for which an action will lie by the lower riparian proprietor without proof of any special damage.... The action is allowed ... 'to vindicate the plaintiff's right, and to prevent a loss of it by adverse possession and lapse of time.' The cases are numerous in support of this view, and of the reasons upon which...