Hill v. Davis
| Citation | 130 So.2d 39,272 Ala. 166 |
| Decision Date | 11 May 1961 |
| Docket Number | 7 Div. 523 |
| Parties | R. E. HILL et ux. v. William M. DAVIS. |
| Court | Alabama Supreme Court |
Starnes & Holladay, Pell City, for appellants.
Maurice F. Bishop, Birmingham, for appellee.
This appeal is from a final decree in a declaratory judgment action to construe a written agreement between adjoining landowners executed in 1928. Appellant Hill was the grantor in the agreement, and N. H. Waters and W. A. Poindexter, the predecessors in title to appellee Davis, were the grantees. In 1928, Hill resided in Texas, but in 1955, he moved on his Alabama land and his since resided there.
A small branch ran east through the property of Hill and on through the property of Waters and Poindexter, who were lower riparian owners. They built a dam on their property with the idea of constructing a lake. The line between their property and Hill's was the Simmons Mountain Road, which runs north and south and intersects Alabama Highway 174, which is part of the northern boundary of the lake. A fairly high bridge on the boundary line road spans the branch.
When the dam was completed in 1928, it was discovered that the impounded water overflowed on Hill's land west of the road. Waters and Poindexter negotiated with Hill and the agreement which is the subject of this suit was executed. In pertinent part, it reads:
'Know All Men by These Presents: That in consideration of the sum of Two Hundred Seventy-five ($275.00) Dollars, the receipt whereof is hereby expressly acknowledge, I, the undersigned, R. E. Hill, for myself, my heirs, executors, administrators and assigns, do hereby and herewith forever release, discharge and acquit N. H. Waters and W. A. Poindexter, their heirs, executors, administrators and assigns of and from all damage, claims, rights, and causes of action which I now have against them, or either of them, or which at any future time I may have against them, or either of them, for and on account of the inundation and overflowage of the following described property, situated in the County of St. Clair, State of Alabama, to-wit:
(Description)
'By these presents further granting to the said N. H. Waters and W. A. Poindexter, their heirs, executors, administrators and assigns, an easement in perpetuity, or for so long as they or either of them, their heirs, executors administrators and assigns choose to enjoy said easement, for said overflowage in and to any part of said land owned by me.
'In Witness Whereof, I have hereunto set my hand and seal on this 10th day of August, 1928.
'/s/ R. E. Hill (L. S.)
'(Acknowledgment)'
The property described was must larger in area than the actual land which was covered by the water forming the lake. About 7/8ths of the lake was on land of Waters and Poindexter, the other 1/8th was on Hill's land. Appellee purchased the Waters-Poindexter land in 1956.
The bill alleged that the entire body of water was treated and used as one lake, and was developed as a commercial lake; that Davis and his predecessors in title have leased and sold fishing rights to the entire lake, and have historically had access to the overflowed or inundated area by boat and by fishing from the banks in that portion of the lake on Hill's land. It was alleged that boats traversed the entire lake and the proof showed that boats could easily go under the bridge on the road which was the boundary line between the properties.
It was alleged that during 1959, the State of Alabama acquired part of appellee's land and part of Hill's land for highway purposes (in connection with Highway 174) and it was necessary to drain the lake. While it was temporarily drained, appellant built a fence along his side of the boundary line. The fence did not impede the water from going over Hill's land, but prevented appellee and his licensees from going under the bridge by boat.
The demurrer to the bill was overruled and answer was filed. The trial followed and the court found that:
'(a) The complainant has the right to force or overflow water upon the land, or any part of it, described in the instrument executed by the respondent R. E. Hill on August 10, 1928, attached as Exhibit A to the bill of complaint; (b) The complainant has the full and exclusive right to the use of the water and the...
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