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

• Decision Date: 09 April 1999
• Citation: 796 So.2d 322
• Parties: COVE PROPERTIES, INC. v. WALTER TRENT MARINA, INC.
• Court: Alabama Court of Civil Appeals

796 So.2d 322

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

2980044

Court of Civil Appeals of Alabama.

April 9, 1999.

Rehearing Denied July 16, 1999.

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.

The plaintiff, Cove Properties, Inc. ("Cove"), appeals from a summary judgment entered by the Baldwin County Circuit Court in favor of the defendant, Walter Trent Marina, Inc. ("Trent"), on Cove's claims alleging that Trent had encroached upon its riparian rights. We affirm in part, reverse in part, and remand.

This is the second time this case has been before this court. In Cove Properties, Inc. v. Walter Trent Marina, Inc., 702 So.2d 472 (Ala.Civ.App.1997) ("Cove I"), we summarized much of the procedural history of the case:

"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.

"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 I, 702 So.2d at 473 (footnotes omitted). This court affirmed the dismissal as to Cove's fourth and fifth causes of action, but reversed and remanded as to its first three causes of action, holding that the trial court had erred in determining that § 6-2-38(l), Ala.Code 1975, the two-year residual personal-injury statute of limitations, applied to Cove's first three causes of action. 702 So.2d at 476-77.

After the case was remanded, Trent moved for a summary judgment on Cove's remaining claims, contending that "any encroachment of [Trent's] pier onto the extended boundary lines of [Cove's] occurred in navigable waters" and that its encroachment could not have violated Cove's rights therein because, it said, "[Cove] does not own that property inasmuch as it is the property of the State of Alabama." Its motion was supported by a copy of an amendment to its lease from the Alabama Department of Conservation and Natural Resources, a copy of an agreement pertaining to the parties' land boundary line, and various maps of the Trent property. Cove filed a response in opposition to Trent's motion and requested that a partial summary judgment be entered in its favor on the issue of Trent's liability. Its motion was supported by an affidavit of its former president, Dennis W. Bikun, and excerpts from the transcript of the deposition of the president and principal owner of Trent; Cove later submitted letters addressed to Trent by officials of the United States Army Corps of Engineers and the Alabama State Docks Department.

On June 17, 1998, the trial court entered an order denying Cove's motion for a partial summary judgment and granting Trent's summary-judgment motion, declaring that it was denying all relief sought by Cove. Cove's post-judgment motion, filed pursuant to Rule 59, Ala.R.Civ.P., was denied by the trial court, and Cove appealed to the Alabama Supreme Court. Cove's appeal was then transferred to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Rule 56, Ala.R.Civ.P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, the trial court must determine: 1) that there is no genuine issue of material fact, and 2) that the moving party is entitled to a judgment as a matter of law. The burdens placed on the moving party by this rule have often been discussed:

"`The burden is on one moving for summary judgment to demonstrate that no genuine issue of material fact is left for consideration by the jury. The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact. Woodham v. Nationwide Life Ins. Co., 349 So.2d 1110 (Ala.1977); Shades Ridge Holding Co. v. Cobbs, Allen & Hall Mortg. Co., 390 So.2d 601 (Ala.1980); Fulton v. Advertiser Co., 388 So.2d 533 (Ala.1980).'"

Berner v. Caldwell, 543 So.2d 686, 688 (Ala.1989) (quoting Schoen v. Gulledge, 481 So.2d 1094, 1096-97 (Ala.1985)). In determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant. Long v. Jefferson County, 623 So.2d 1130, 1132 (Ala.1993). No presumption of correctness attaches to the trial court's ruling on a summary-judgment motion, and our review is de novo. Hipps v. Lauderdale County Bd. of Educ., 631 So.2d 1023, 1025 (Ala.Civ.App.1993) (citing Gossett v. Twin County Cable T.V., Inc., 594 So.2d 635 (Ala.1992)).

The parties' submissions in connection with the summary-judgment motions do not establish all of the boundaries of their lots bordering Terry Cove; however, the record reveals that the two tracts lie on the north shore of Terry Cove, and that Cove's tract is a comparatively narrow strip extending from the shoreline of Terry Cove inland (i.e., to the north) and bordering Trent's tract on the west. Just inside the border between the two tracts, the shore of Terry Cove, as one looks from east to west, turns sharply to the north into Cove's tract and forms an indentation, or basin, inside the tract. Thus, while the straight-line distance from the east boundary line of Cove's tract to the west property line is approximately 110 feet, the total frontage of Cove's tract along Terry Cove is somewhat greater. A copy of a map showing the general shape of Cove's tract is attached as Exhibit A to this opinion.

The parties reached an agreement concerning their land boundaries on April 12, 1993; thereafter, Cove commissioned Rowe Surveying and Engineering to perform a survey of Trent's 350-foot-long pier that lay alongside the parties' agreed land border (the "Rowe survey"). A detail of the Rowe survey revealed that the northern, or shore-based, end of Trent's pier encroached upon Cove's land above the high-water mark by approximately half a foot; however, when the land border line between the properties was projected into Terry Cove, the encroachment increased to as much as 7.1 feet at the southern tip of the pier and its attached stalls. Thus, the encroachment amounted to approximately seven percent of the Cove tract's 110-foot straight-line water frontage on Terry Cove. A copy of the Rowe survey is attached as Exhibit B to this opinion.

On February 23, 1994, Trent entered into a lease with the Commissioner of the Alabama Department of Conservation and Natural Resources whereby the Commissioner, on behalf of the State, purported to lease Trent a triangular sliver of submerged land underneath Trent's pier extending from a point 150 feet from the shoreline to the end of the pier. We note that neither party has contested the capacity of the Commissioner to lease these submerged lands. The lease contained recitals stating that the westward encroachment of the pier across the projected property line began at 150 feet from the shore, and that the depth of the waters underneath the pier at that point was approximately 6.5 feet, which was stated to be "adequate for navigation in Terry Cove." However, there is no reference in the lease to the land underneath the one-half-foot shore encroachment shown in the detail of the Rowe survey, nor to any submerged lands lying less than 150 feet from the shore.

At this point, we may draw distinctions between Cove's property rights in three different categories: (1) its rights to the land above high-water mark; (2) its riparian rights (more properly designated as its "littoral" rights; see Wehby v. Turpin, 710 So.2d 1243, 1246 n. 2 (Ala.1998)

) between the high-water mark and that point in Terry Cove where the water becomes navigable, that is, the "point of navigability"; and (3) from the point of navigability to the point corresponding to the south end of Trent's pier.

With respect to the first of these categories, Cove has the same property rights as any landowner to be free from a continuing trespass on its land. Trespass has been defined as "any entry on the land of another without express or implied authority," Central Parking Sys. v. Steen, 707 So.2d 226, 228 (Ala.1997) (quoting Foust v. Kinney, 202 Ala. 392, 393, 80 So. 474, 475 (1918)), and a structure maintained on another's property is a continuing trespass. Alabama Power Co. v. Gielle, 373 So.2d 851, 854 (Ala.Civ.App.), cert. denied, 378 So.2d 1100 (Ala.1979). The sole evidence in the record concerning this...