DeWitt v. Stevens

• Decision Date: 24 April 1992
• Citation: 598 So.2d 849
• Parties: William E. DeWITT v. Julian Ray STEVENS and Barbara Stevens. 1901336.
• Court: Alabama Supreme Court

Page 849

598 So.2d 849

William E. DeWITT v. Julian Ray STEVENS and Barbara Stevens.

1901336.

Supreme Court of Alabama.

April 24, 1992.

Larry O. Putt and F. Braxton Wagnon of Smyer, White & Putt, Birmingham, for appellant.

Michael L. Roberts of Floyd, Keener, Cusimano & Roberts, Gadsden, and Charles E. Robinson, Ashville, for appellees.

ALMON, Justice.

William E. DeWitt appeals from a judgment denying his petition for condemnation of a right-of-way across the property of Julian Ray Stevens and Barbara Stevens. DeWitt argues that the trial court erred in admitting evidence of other potential access to DeWitt's property, in applying the law to the facts, and in its findings of fact.

DeWitt initially filed an action in the circuit court seeking to have an easement established across the Stevenses' property, but the court denied that request. He then initiated this action by petitioning the probate court for a right-of-way. DeWitt argued that his property was landlocked and that he had no means of ingress and egress because the Stevenses' land was between his land and the nearest public road, Highway 231.

The probate court refused to condemn the property and held, after viewing the properties, including the immediate area and the area DeWitt sought to condemn as a right-of-way, that there were nearer and more convenient ways for DeWitt to get to his property. DeWitt appealed to the circuit court and that court also, after receiving ore tenus evidence, denied DeWitt's application for condemnation of the right-of-way.

Under the ore tenus rule, the trial court's decision, "where supported by the evidence, is presumed correct and should be reversed only if the judgment is found to be plainly and palpably wrong, after a consideration of all of the evidence and after making all inferences that can logically be drawn from the evidence." Martin v. First Federal Savings & Loan Ass'n of Andalusia, 559 So.2d 1075, 1078 (Ala.1990). Although there is a presumption in favor of the findings of fact of the trial court where the testimony is presented ore tenus, such a presumption does not apply where the trial court has incorrectly applied the law to those facts. Collier v. Brown, 285 Ala. 40, 228 So.2d 800 (1969).

In the present case the trial court made the following findings of fact: The Stevenses own property that lies between DeWitt's property and Highway 231, a public roadway. Dewitt's land is landlocked, because there is no existing public road, easement, or right-of-way for ingress to and egress from his property. The Stevenses' property does not touch Highway 231, but a private drive or roadway leads from Highway 231 to the Stevenses' property. The Stevenses use this drive as an access to and from their property, and it continues all the way through their property to DeWitt's property. DeWitt had previously used this drive to get to his property, but, after a dispute between the parties, the Stevenses would no longer allow DeWitt to use the drive. The Stevenses also own a 100-foot-wide strip of land that connects their property to Highway 231, but the driveway described above is not on that strip of land. The driveway has been maintained and improved by the Stevenses over the years at their personal expense. It passes within 40 to 50 feet of their personal residence.

The trial court further found that using the driveway to get to his property was not DeWitt's closest route from Highway 231. The distance from Highway 231 along the driveway to DeWitt's property is 2,730 feet. DeWitt owns an easement across the first 1,130 feet of this distance, from Highway 231 to the beginning of the Stevenses' property. This portion of the driveway crosses property owned by St. Clair County. Therefore, the distance sought to be condemned across the Stevenses' property is 1,600 feet.

The court noted that two alternatives to the route along the Stevenses' driveway were available to DeWitt for access to his property. These alternative routes included: 1) from DeWitt's property across land owned by St. Clair County, and continuing across an additional 80- to 100-foot strip of land belonging to a landowner, not a party to this action, to Highway 231, for a total distance of 1,400 feet; or 2) from DeWitt's property, along the south boundary of the Stevenses' property, and continuing to Highway 231 along the 100-foot-wide strip owned by the Stevenses. This second route would not require DeWitt to use the private drive; however, any roadway across either of these routes would have to be built by DeWitt. The trial court did not determine the distance of the route using the 100-foot strip of land owned by the Stevenses, but it appears on the map to be shorter than the route along the Stevenses' driveway.

The trial court held that although the Stevenses' driveway is a convenient route for DeWitt, it is not the shortest route to a public road and would cause substantial inconvenience to the Stevenses. Specifically, the driveway passes within 40 to 50 feet of the Stevenses' house; the Stevenses raise cattle, and public access along the driveway would make it difficult to move the cattle from the field to the barn; the Stevenses are in the towing and salvage business, and public access to the driveway would create security problems with regard to the stored vehicles, as well as to their house. The Stevenses testified that they had had problems with burglaries and that those problems had prompted them to erect a gate at the entrance to their property; this gate, according to the Stevenses, eliminated the problem of persons stealing the cars.

DeWitt raises three issues in this appeal: 1) Whether the trial court committed reversible error by admitting at trial evidence showing that a way across the land of another, not a party to the litigation, would result in less inconvenience and damage to the nonparty than would result to the Stevenses if their property was condemned; 2) Whether the trial court missapplied the law to the facts of this case; and 3) Whether the judgment of the trial court, refusing to grant the right-of-way, was...