Crommelin v. Fain

• Decision Date: 31 July 1981
• Citation: 403 So.2d 177
• Parties: John G. CROMMELIN, Jr. and wife, Lillian E. Crommelin v. Dennis G. FAIN and wife, Carol K. Fain. 79-600.
• Court: Alabama Supreme Court

Page 177

403 So.2d 177

John G. CROMMELIN, Jr. and wife, Lillian E. Crommelin v. Dennis G. FAIN and wife, Carol K. Fain.

79-600.

Supreme Court of Alabama.

July 31, 1981.

Rehearing Denied Aug. 28, 1981.

Julian L. McPhillips, Jr., Montgomery, for appellants.

G. Houston Howard, II, of Howard & Dunn, Wetumpka, for appellees.

ALMON, Justice.

John Murrell, Lula Fain and Beulah Fain held as tenants in common title to approximately eighty acres of land in Elmore County, Alabama. Lula and Beulah Fain each owned a one-quarter undivided interest, and Murrell owned the remaining one-half undivided interest in the property. A spring-fed stream originates on and crosses through a portion of this property and, like at least six other streams in the area, empties into swimming pools and fishing ponds constructed and owned by an abutting landowner John G. Crommelin, Jr. These pools are operated by the Crommelin family as a commercial enterprise and serve as a recreational area for numerous Elmore County residents and others who pay an admission fee for the use of the pools, ponds and adjoining facilities.

In 1940, Murrell entered into the following agreement with Crommelin:

Whereas, John Samuel Murrell, is the owner of an undivided interest in and to the following described lands situated in Elmore County, Alabama, to-wit:

The South half of the Southeast quarter of Section 30, Township 18, Range 19, containing 80 acres, more or less,

and whereas, John G. Crommelin, Jr., owns land in the vicinity of said lands above described, and natural streams and surface waters on the land of said Murrell run through and over the lands of said Crommelin, and

Whereas, said Crommelin is desirous of preventing any obstruction of the flow of said surface waters and streams and of preventing any pollution of said waters which would in any wise affect the lands of said Crommelin or any lands (in) which said Crommelin may hereafter acquire any interest,

Now, Therefore, in consideration of the premises, and in further consideration of the sum of Thirty-Five and no/100 Dollars in hand paid by said John G. Crommelin, Jr. to the said John Samuel Murrell, and in further consideration of other good and valuable considerations, the receipt of which is hereby acknowledged, I, the said John Samuel Murrell, a widower, hereby agree to the following:

First: That I will forever refrain from obstructing any stream on the lands hereinabove described and will not in any manner do any act or permit any act which would directly or indirectly pollute or obstruct waters of said streams or pollute any surface waters on said above described lands, and in particular will prevent pollution by such acts as the emptying of sewage on said lands or the erection of stock corrals near running streams such as would pollute said waters.

Second : That the said Crommelin be and he is hereby given the right and privilege of entering upon the above described lands and doing such acts as may be necessary to insure the carrying out the provisions of the said contract, and in particular, to remove any obstruction or retardation of the flow of the waters over said lands, and/or sources of pollution, and may also deepen or widen the beds of said streams so as to facilitate and insure the flow of waters over and across said lands.

This agreement shall be construed as a covenant running with the lands of said Crommelin and of the said Murrell, and shall bind said Murrell, his heirs, executors, administrators and assigns, same shall run in favor of the said Crommelin, his heirs, executors, administrators, and assigns, of the lands which said Crommelin now owns or other lands affected thereby in which said Crommelin may hereafter acquire an interest.

TO HAVE AND TO HOLD to the said John G. Crommelin, Jr., his heirs and assigns, forever.

This agreement was recorded in the Office of the Probate Judge of Elmore County.

Six months after he executed this agreement with Crommelin, Murrell conveyed his one-half undivided interest in the property to Lula Fain. Two years later, Beulah Fain conveyed her one-quarter undivided interest to Lula, thus vesting in her sole ownership of the property.

In 1978, Lula Fain conveyed four acres of this property to Dennis and Carol Fain. Six months later she conveyed to them a ten foot strip which runs from their property to the stream and spring boils. Upon this strip Dennis Fain constructed a water system which runs from a pump located in the area of the spring boils to his newly built house. The water drawn from the stream through this system is used for domestic purposes, i. e., drinking, bathing, cooking, flushing toilets, washing clothes and watering the grass. The waste water from these activities flows into a septic tank Dennis Fain built on his property.

Soon after the Fain home and improvements were completed, Crommelin sued to enjoin the Fains from drawing water from the stream or operating their septic tank because, according to Crommelin, those activities both decreased the free flow of water and, because the concrete culvert Fain installed over the spring boils stirred up mud, polluted the remaining water which flows into his pools. Crommelin also sought damages for breach of covenant. The trial judge, hearing the evidence ore tenus, denied Crommelin's requested relief. Crommelin raises several issues on appeal.

I

Crommelin contends the trial judge's conclusion that the covenant executed by Murrell is not binding upon the Fains is in error. He argues that the covenant is binding by way of either ratification or a novel theory of "covenant merger." Under this theory, he argues that when Lula acquired Murrell's burdened one-half interest, that burdened interest merged with her unburdened one-quarter interest and thus bound the entire three-quarter interest and, further, when Lula acquired Beulah's unburdened one-quarter interest, the entire interest became bound by the covenant. We reject both arguments.

When a tenancy in common exists, each cotenant, regardless of the quantum of his proportionate share, has an interest in and right to use all of the property held in common; no one cotenant has the right to the exclusive use or possession of any portion of the property. The only limitation upon a cotenant's use and enjoyment of the property is that he must not do any act which would interfere with his cotenant's rights, use and enjoyment of the common property. See 86, C.J.S. Tenancy in Common §§ 17-24 (1954).

As a general rule a cotenant may, without the knowledge or consent of his cotenants, deal with his separate interest or any fractional interest thereof as freely as he can with any other property he may own. Lee v. Lee, 271 Ala. 5, 122 So.2d 139 (1960); Moore v. Foshee, 251 Ala. 489, 38 So.2d 10 (1948). Thus, he may convey by deed, Moore v. Foshee, supra; lease, Sun Oil Co. v. Oswell, 258 Ala. 326, 62 So.2d 783 (1953); license another to enter upon the property Jasper Land Co. v. Manchester Sawmills, 209 Ala. 446, 96 So. 417 (1923); or mortgage his interest, Giddens v. Reddoch, 207 Ala. 297, 92 So. 848 (1922).

A cotenant may not, however, without the consent of the other cotenants, convey, lease, license or mortgage an interest in the property greater than that which the individual cotenant owns. In 20 Am.Jur.2d Cotenancy and Joint Ownership § 95 (1965), it is stated:

Since there is, merely by reason of the existence of a cotenancy, no agency relationship between the cotenants, * * * one cotenant cannot ordinarily transfer or dispose of the interest of another cotenant in such manner as to be binding, unless duly authorized to do so. Nor can a cotenant, as a rule, bind his cotenants by any unauthorized attempt to alienate or encumber the entire estate or any specific part or portion thereof, or an undivided interest in any such portion. In the absence of authorization or ratification on the part of his cotenants, any dealing on the part of one cotenant in relation to the common property is a mere nullity insofar as their interests are concerned.

In 20 Am.Jur.2d Cotenancy and Joint Ownership § 96 (1965), appears the following:

While an individual cotenant can deal with his own moiety or interest as freely as he can with any other property he may own, any alienation or encumbrance by one cotenant of the common property or of his cotenants' interest therein, in the absence of authorization or ratification on the part of the other cotenant, is a mere nullity insofar as their interests are concerned. But a transaction of this kind is void only as to the cotenants. It is not void as against the actor and may bind his undivided interest. In a proper case the courts will accord to the persons with whom he has dealt such relief as the facts may warrant insofar as that can be done without prejudice to the rights of the nonacting cotenant.

See Giddens v. Reddoch, 207 Ala. 297, 92 So. 848 (1922); Kidd v. Borum, 181 Ala. 144, 61 So. 100 (1913); Howze v. Dew, 90 Ala. 178, 7 So. 239 (1890).

The grant of an easement by one cotenant poses a different problem and is subject to a different rule:

One cotenant cannot, without the joinder of the others, grant an easement in the land. * * * A grant of an easement, made by one cotenant, would seem to be invalid for the reason that such a grant of an easement in an undivided interest in land is necessarily a nullity, so far as concerns the actual utilization of the land by the grantee. It involves an attempt by one cotenant, not to substitute another as cotenant in his place, as in the case of a conveyance or lease of his interest, but to enable a person, not a cotenant, to interfere, it may be perpetually, with the possession of the other cotenants.

Vol. II, Tiffany, The Law of Real Property, § 456 (3d ed. 1939). Stated more succinctly, "(s)uch a grant involves more than the grant or lease of his individual interest in a part of the property, since the easement, if given effect, would...