In re

• Citation: 109 So.3d 154
• Decision Date: 19 October 2012
• Docket Number: 1110794 and 1110915.
• Parties: Howard M. SCHRAMM, Jr. v. George G. SPOTTSWOOD and Amy H. Spottswood. George G. Spottswood and Amy H. Spottswood v. Howard M. Schramm, Jr., et al.
• Court: Supreme Court of Alabama

109 So.3d 154

Howard M. SCHRAMM, Jr.

v.George G. SPOTTSWOOD and Amy H. Spottswood.

George G. Spottswood and Amy H. Spottswood

v.Howard M. Schramm, Jr., et al.

1110794 and 1110915.

Supreme Court of Alabama.

Oct. 19, 2012.

Allan R. Chason of Chason & Chason, P.C., Bay Minette, for appellant Howard M. Schramm, Jr., and cross-appellees Howard M. Schramm, Jr., Henry E. Reimer, Sr., Daniel E. Reimer, Sr., Regina R. Ehlert, and Melanie R. Moore.

Bradley R. Byrne and Kenneth S. Steely of Jones, Walker, Waechter, Poitvent, Carrère & Denègre L.L.P., Mobile, for appellees/cross-appellants George G. Spottswood and Amy H. Spottswood.

STUART, Justice.

Howard M. Schramm, Jr., appeals the March 6, 2012, judgment of the Baldwin Circuit Court approving pier-construction permits issued to Schramm's neighbors, George G. Spottswood and Amy H. Spottswood, by the Alabama Department of Conservation and Natural Resources (“DCNR”) and Baldwin County even though the proposed pier would violate the 10–foot setback rule in the applicable DCNR and Baldwin County rules and regulations (appeal no. 1110794). The Spottswoods cross-appeal the order of the Baldwin Circuit Court denying their January 9, 2012, motion to alter, amend, or vacate its February 27, 2007, judgment setting the boundaries of their riparian-use area (appeal no. 1110915). We affirm.

I.

This dispute concerns the boundaries between three coterminous lots located on the eastern shore of Mobile Bay approximately one mile south of the Grand Hotel at Point Clear. In March 2005, the Spottswoods bought the middle of those lots from the Demouy family and thereafter commenced replacing the existing pier on the lot (“the Demouy pier”), which had been built in the 1950s but had been damaged by Hurricane Ivan in 2004. When it became apparent to the Spottswoods' neighbors to the south, Henry E. Reimer, Sr., Daniel E. Reimer, Sr., Regina R. Ehlert, and Melanie R. Moore (collectively referred to as “the Reimers”), that the Spottswoods intended to build their new pier to the south of where the Demouy pier had been located, the Reimers became concerned that their view of the sunset and of the Grand Hotel would be obstructed, and they accordingly commissioned a survey to ascertain the proper boundary lines for the lots, both the upland boundary line between the lots and the riparian boundary line extending out from the shore and into Mobile Bay.¹ When that survey showed the upland boundary line between the lots as being in a location that significantly decreased what was believed to be the Spottswoods' water frontage and the riparian boundary line as being in a location that bisected the Demouy pier, the Reimers initiated an action seeking to establish conclusively the boundary lines set forth in that survey as the boundaries between the two lots. The Spottswoods filed a counterclaim seeking to establish the property lines in a manner consistent with their own survey, which afforded them significantly more waterfront footage. Eventually Schramm, the Spottswoods' neighbor to the north, intervened, seeking a judgment declaring the boundary lines between his lot and the Spottswoods' lot as well.

On February 27, 2007, the trial court entered a final judgment in the case. In that order, the trial court noted that the determination of the boundaries was complicated by the fact that the documentary evidence did not clearly define boundaries along the beach area, which had changed shape and grown by a minimum of approximately 50 feet and perhaps as much as 150 feet over an approximately 150–year period. Applying equitable principles, the trial court therefore held that the boundary line proposed by the Spottswoods was the proper border between their lot and the Reimers' lot, thus giving the Spottswoods ownership of a disputed triangle-shaped piece of land also claimed by the Reimers. However, the trial court also declined to apply the general rule holding that riparian boundary lines should run perpendicular to the shoreline because doing so would have placed the riparian boundary between the Spottswoods and the Reimers directly through the Reimers' pier, which had existed since the 1950s and which, when built, was undisputedly south of a line running perpendicular to the shore where the Spottswood and Reimer parcels met. Thus, the trial court held that the riparian boundary line should instead extend out into the water at the same angle as the upland boundary line.

The trial court also held that both the upland and riparian boundary lines between Schramm's lot and the Spottswoods' lot had been defined in a 1956 agreement between their predecessors in title. That agreement also required any pier or similar structure constructed on Schramm's lot to observe a 25–foot setback along the riparian boundary line with the Spottswoods, which line, pursuant to the general rule, extended perpendicular from the shore. The trial court further held that the 1956 agreement imposed no similar setback requirements upon the owners of the Spottswoods' lot.

Once the riparian boundary lines of the Spottswood property were established, the result was that the Spottswoods had riparian rights to a triangle-shaped area in front of their property bordered by the shore on the east and the above-described riparian boundary lines on the north and south until they intersected at a point approximately 105 yards offshore. With regard to the placement and style of any pier constructed by the Spottswoods, the trial court held that the Spottswoods could proceed with the construction of a new pier without any limitation upon the height, structure, or materials used, provided (1) that they complied with all applicable state and federal permitting requirements and (2) that they built the pier in the same general footprint of the Demouy pier—even though the Demouy pier had in fact encroached to a small extent into waters as to which Schramm had riparian rights. Finally, the trial court noted that it retained jurisdiction “to determine any subsequent issues regarding the establishment or description of the land and riparian boundary lines decreed herein or the Spottswoods' construction of their pier.”

The Spottswoods subsequently appealed the judgment of the trial court, arguing that the court erred in its determination of their riparian boundary line with the Reimers and in requiring them to build any new pier within the footprint of the Demouy pier; the Reimers cross-appealed, arguing that the trial court erred in its determination of the upland boundary line between their lot and the Spottswood lot. On July 24, 2009, in Spottswood v. Reimer, 41 So.3d 787, 796–98 (Ala.Civ.App.2009), the Court of Civil Appeals affirmed the trial court's judgment insofar as it established both the upland and riparian boundaries between the Spottswood and Reimer lots; however, it reversed the trial court's judgment to the extent it required the Spottswoods to build any future pier in the footprint of the Demouy pier, holding that that restriction was in violation of § 33–7–50, Ala.Code 1975, which, this Court held in Ex parte Cove Properties, Inc., 796 So.2d 331, 334 (Ala.2000), authorizes owners of riparian lands to construct a pier in navigable waters in front of their property subject only to harbor and pier lines established by the United States or the State of Alabama and the additional caveat that the pier not unreasonably obstruct navigation.

On approximately February 10, 2010, the Reimers began seeking permits to begin repairing their pier, which had been damaged in August 2005 during Hurricane Katrina, by preparing (1) a joint application to the United States Army Corps of Engineers and the Alabama Department of Environmental Management; (2) an application to DCNR; and (3) an application to Baldwin County. On February 26, 2010, the Reimers submitted a copy of their applications and plans to the trial court, the Spottswoods, and Schramm, asking the trial court to confirm that the construction of their pier was in compliance with the trial court's February 27, 2007, order. On April 19, 2010, the trial court entered an order confirming that the Reimers' proposed pier did not violate its earlier judgment and again stating that it would retain jurisdiction “to review any application hereafter submitted by [the Spottswoods] for the construction of their pier.”

Subsequently, however, the Spottswoods filed an objection to the Reimers' proposal with DCNR, arguing that the Reimers' proposed pier would come within 10 feet of the riparian boundary separating their riparian-use area, in violation of DCNR rules requiring all piers on State-owned submerged land to be “setback 10 feet from the riparian lines of adjacent property owners,” Ala. Admin. Code (Department of Conservation and Natural Resources), Rule 220–4–.09(4)(b)(11), as well as a similar Baldwin County regulation. The Reimers thereafter requested the trial court to intervene, arguing that they were rebuilding their pier in the footprint on which it had existed for over 50 years, with the exception of a 3–foot addition to the boat lift—the boat lift being the only part of the pier within 10 feet of the riparian boundary—that had been made in 1998 with the approval of the Demouy family, the Spottswoods' predecessors in title. However, the Reimers subsequently conceded the issue and redrew their plans to place the boat lift on the south side of their pier so as to completely prevent any portion of their pier from intruding into the 10–foot setback area.

The Spottswoods thereafter filed for permits to build their own pier, receiving the permits in January and February 2011. Those permits approved the Spottswoods' plans to build a pier just inside the riparian boundary line separating the Spottswoods' and Schramm's riparian-use areas. In other words, the proposed pier left essentially no setback area on the Spottswoods' side of the riparian boundary line. In an affidavit explaining...