Johnson v. Metro Land Co., L.L.C.

• Decision Date: 27 March 2009
• Docket Number: 2070928.
• Citation: 18 So.3d 962
• Parties: Otis L. JOHNSON v. METRO LAND COMPANY, L.L.C., and Gerald Prosch.
• Court: Alabama Court of Civil Appeals

18 So.3d 962

Otis L. JOHNSON v. METRO LAND COMPANY, L.L.C., and Gerald Prosch.

2070928.

Court of Civil Appeals of Alabama.

March 27, 2009.

Charles N. Reese of Reese & Reese Attorneys, Daleville, for appellant.

Elizabeth A. Citrin, Daphne, for appellees.

THOMPSON, Presiding Judge.

Otis L. Johnson appeals from the judgment of the Mobile Circuit Court finding that he did not have a prescriptive easement over property adjacent to his, condemning a strip of property for his use as a means of ingress and egress to his property, and ordering him to pay compensation to the owners of the property condemned. For the reasons stated herein, we affirm that part of the judgment concluding that Johnson did not have a prescriptive easement, and we dismiss the appeal to the extent that it arises from that part of the judgment relating to the condemnation of the adjacent property.

In 1994, Johnson purchased from members of his extended family a 10-acre tract of property located in the City of Satsuma ("the City"). The property does not border a public road; instead, access to the nearest public road, Baldwin Road, was obtained by use of what is variously described in the record as a trail, a dirt road, or a "pig trail" (hereinafter, "the trail"). The trail began at Baldwin Road, traveled in a northwesterly direction over two tracts of property that bordered Baldwin Road, and entered Johnson's property from the south. Running along the western border of Johnson's property is an unimproved strip of land that connects to Baldwin Road and is owned by the City. The City has not developed the strip of land as a public roadway.

In 1997, William Reeves purchased the 10-acre tract of land directly south of Johnson's property (the second of the 2 tracts of land over which the trail traveled) and subdivided the tract into 6 100-foot-wide lots. In 2003, Metro Land Company, L.L.C. ("Metro"), purchased several of the lots from Reeves, and, in 2004, it constructed an apartment complex on the easternmost lots, thereby blocking the trail. Metro also built a road on the lots to the west of the apartment complex. The road, named Baldwin Court, runs north from Baldwin Road and terminates a few feet south of Johnson's property in a cul-de-sac.

On September 22, 2004, Johnson filed an action against the City; Metro; Gerald Prosch, one of Metro's owners; and Charles Little, who owned the tract of land to the east of the apartments on which the trail originated at Baldwin Road. Johnson's complaint, in separate counts, sought: (1) a declaration that he had an equitable or legal interest to a right-of-way to access Baldwin Road; (2) a finding that he owned the real property constituting the trail through adverse possession; (3) a finding that he possessed a prescriptive easement over the real property constituting the trail; and (4) a finding that he possessed an implied easement over the real property constituting the trail. Johnson also sought an order from the circuit court condemning a strip of land, pursuant to § 18-3-1, Ala.Code 1975, through property adjacent to his property over which he could gain access to Baldwin Road.¹ He also sought damages against the City on the basis that it had acted negligently when it granted Reeves's request to subdivide Reeves's property and when it granted Metro the right to build a structure that blocked the trail. Finally, he alleged that Metro and Prosch had committed a trespass when Metro built the apartment complex that blocked the trail. The City was subsequently dismissed from the action, and Johnson entered into a settlement agreement with Little, causing Little to be dismissed from the action as well.

On August 3, 2007, the circuit court held a bench trial. Among others, Johnson called his cousin, Ida Howell, as a witness. Howell testified that she had lived in a house located on what is now Johnson's property from the time of her birth until she left home when she was 19 years of age and that her parents' house had been the only house located on that property. She testified that after leaving home she had continued to return to the property to visit her parents. She stated that the only access to the property was over the trail. She testified that her father had owned the property to the south of Johnson's property that Reeves had subsequently purchased. She testified that her grandmother had owned property on both sides of the trail near its origin on Baldwin Road and that her grandmother and her uncle each had lived in houses on that property that were across the trail from one another. Howell stated that those three houses had been the only ones located adjacent to the trail. She testified that the only purpose the trail had served was for ingress to and egress from her relatives' properties. Howell testified that she had ceased using the trail in 1991 because, by that time, her parents had died and her family members who had lived in houses on the trail no longer lived there.

Johnson testified that he had visited his relatives on the property he now owns on many occasions when he was growing up. He testified that the trail was "just a regular road" and "wide enough to drive through." Apparently contradicting Howell's testimony, Johnson stated that, in addition to the house in which Howell grew up, there had been a second house on what is now his property, and that, when he purchased the property in 1994, there were two people living in that second house. Johnson ordered the two people in the second house to vacate the house, which they did, and, subsequently, he had the second house torn down and removed. The crew tearing the house down accessed his property via the trail. Johnson testified that in 1997 he had timber removed from his property and that the trucks that had removed the timber from his property had accessed his property by use of the trail. He testified that he did not ask for permission to use the trail.

Defendants Metro and Prosch called Reeves, among others, as a witness. Reeves testified that when he purchased the property south of Johnson's property in 1997, the trail was overgrown and no one was using it. He testified that, at the time that Johnson had been planning to remove the timber from his property, Johnson had told Reeves that he did not have a way to access the property and had asked Reeves for permission to use the trail. Reeves testified that he had given Johnson permission to use the trail.

On February 26, 2008, the circuit court entered a judgment in which it concluded that Johnson did not have an easement by prescription over the trail and that "the testimony before the court was insufficient to establish open, hostile, visible and continuous use adverse to the landowners." The court then determined that Johnson's property was "landlocked with no existing, reasonably adequate means of access." It held that Johnson was entitled, by statute, to seek the condemnation of a convenient right-of-way to Baldwin Road, and, on that basis, it granted to Johnson a 30-foot right-of-way, commencing at the intersection of Baldwin Road and Baldwin Court, traveling north over Baldwin Court and proceeding through the back of the cul-de-sac at the end of Baldwin Court to the southern boundary of Johnson's property. The court ordered Johnson to pay $150,000 to Metro and Prosch for the land taken and for the damage caused by the condemnation of the right-of-way. The court then "dismissed" the action, concluding that there were no further issues before it. Johnson timely appealed to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975. Johnson is represented by new counsel on appeal.

Johnson contends that the circuit court was without jurisdiction to act on his request to condemn Metro's property to create a right-of-way for access to his property because, by statute, such a request must first be made in the probate court. We agree.

The Alabama Constitution sets forth the basis for creating an easement over private property for access to a public road by an individual whose property is otherwise without access to a public road. Section 23 states:

"That the exercise of the right of eminent domain shall never be abridged nor so construed as to prevent the legislature from taking the property and franchises of incorporated companies, and subjecting them to public use in the same manner in which the property and franchises of individuals are taken and subjected; but private property shall not be taken for, or applied to public use, unless just compensation be first made therefor; nor shall private property be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner; provided, however, the legislature may by law secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved; but just compensation shall, in all cases, be first made to the owner; and, provided, that the right of eminent domain shall not be so construed as to allow taxation or forced subscription for the benefit of railroads or any other kind of corporations, other than municipal, or for the benefit of any individual or association."

Ala. Const.1901, art. I, § 23 (emphasis added). The legislature provided the mechanism for condemning private property to create an access easement for landlocked property in §§ 18-3-1 and -3, Ala. Code 1975, which provide:

"The owner of any tract or body of land, no part of which tract or body of land is adjacent or contiguous to any public road or highway, shall have and may acquire a convenient right-of-way, not exceeding in width 30 feet, over the lands intervening and lying between such tract or body of land and the public road nearest or most convenient thereto provided written approval is obtained from the municipal...