Jones v. Johnson

• Decision Date: 22 February 2002
• Citation: 827 So.2d 768
• Parties: Walker Bryant JONES and Judith Jones v. Guy JOHNSON.
• Court: Alabama Supreme Court

827 So.2d 768

Walker Bryant JONES and Judith Jones v. Guy JOHNSON.

1001117.

Supreme Court of Alabama.

February 22, 2002.

Christopher R. Smitherman, Montevallo, for appellants.

David C. Livingston, Gadsden, for appellee.

PER CURIAM.

Walker Bryant Jones and his wife, Judith Jones, appeal from a judgment in favor of Guy Johnson regarding the ownership and use of a strip of land. We reverse and remand.

This appeal concerns the right of Johnson to use and maintain a driveway that crosses over property owned by the Joneses. The property in dispute was described in a warranty deed by which Johnson conveyed fee simple title to Wayne Garrett, the Joneses' predecessor in title. That deed, which was executed in July 1982, described the property as follows (that deed is hereinafter referred to as "the Garrett deed"):

"All of the Northeast Fourth of the Northwest Fourth of Section 23, Township 8 South, Range 4 East. All that part of the Northwest Fourth of the Northeast Fourth of Section 23, Township 8 South, Range 4 East, except that portion Northeast of Skirum Creek. Also a 33 by 2920 foot strip of property [`the strip'] beginning at the Southeast corner of the Northeast Fourth of the Northwest Fourth of Section 23, Township 8 South, Range 4 East, thence South zero degrees 12 minutes 28 seconds East along the One Half Section Line 2920.0 feet to the North right of way of Highway # 68. Thence East along said right of way 33.0 feet. Thence North zero degrees 12 minutes 28 seconds West 2920.0 feet. Thence North 88 degrees 33 minutes 25 seconds West 33.0 feet to the point of beginning. Property being in Marshall County, Alabama, and containing 73 acres, more or less."

(Emphasis added.)

"The strip" ran south from the south edge of Garrett's property to County Highway 68, while Johnson retained a parcel of property that lay east of the strip and between the rest of Garrett's property and the highway. Thus, the strip bordered the west edge of Johnson's property. An old farm road runs adjacent and parallel to the west side of the strip.

In March or April 1988, Johnson began to build a house. The construction crew used a portion of the strip perpendicular to the farm road as a means of traveling between the farm road and the construction area. On September 28, 1988, Johnson completed a concrete driveway across this portion of the strip, thereby connecting his property to the old farm road.

Johnson testified that soon after the driveway was completed, Garrett said to him, "I see you put your drive over my property." Johnson said that he replied, "That's a drive, public for all of us." According to Johnson, Garrett said, "No. I bought it.... Look at your deed." During his testimony, Garrett expressly denied any memory of this conversation. Johnson said that he reexamined his deed and realized that he had conveyed fee simple title to the strip to Garrett. Nevertheless, he continued to use the driveway. On June 15, 1989, in a warranty deed describing the property in terms essentially identical to the Garrett Deed, Garrett conveyed to the Joneses fee simple title to the property Johnson had previously conveyed to him ("the Jones Deed").

On May 29, 1998, the Joneses sued Johnson, asserting a disputed boundary line and a trespass to land and seeking an ejectment. The ejectment claim—seeking a determination that the property description in the Jones Deed and the Garrett Deed was correct—is the subject of this appeal. The Joneses seek to enjoin Johnson to remove his driveway from "the strip" and to pay all reasonable costs of returning the Joneses' land to the condition it was in before the driveway was constructed.

Johnson answered and counterclaimed, averring: "To the extent that [Johnson's] driveway is found to be upon property owned by the [Joneses], [Johnson] asserts that he has adversely possessed the same continually, adversely, hostilely, [and] openly under a claim of right for the requisite period of time." He later amended his answer to add a counterclaim for reformation of the Garrett Deed to exclude the strip:

"The 33' by 2920' strip of land conveyed to Wayne Garrett ... was intended to be an easement, and not to convey fee simple title.[¹] Pursuant to [Ala.Code 1975,] § 35-4-150, [Johnson requests] the court to reform the Deed to indicate that said property constitutes a nonexclusive easement instead of fee simple title to [Garrett] and his successors in title."

After a nonjury trial, the court entered a judgment holding that the Joneses owned the strip in fee simple. However, it also held that Johnson had "acquired, and [was] entitled to a permanent access easement over and across that portion of [the strip] where a concrete driveway is located." The Joneses appeal from that judgment, contending that the trial judge erred in holding that Johnson has acquired an easement across the strip where the driveway was located.

The trial court's order did not state by what method Johnson had obtained an easement across the strip of land. Johnson contends on appeal that he acquired the easement by adverse possession for a period of 10 years. He states that "when adverse possession is claimed by a coterminous owner, a coterminous landowner must prove open, notorious, hostile, continuous and exclusive possession for only ten years." (Johnson's Brief, at 9.) The Joneses argue that this rule does not apply, because, they contend, the "rule's automatic application to coterminous properties seems to relate only to claims of ownership in fee rather than adverse claims for easements." (Reply Brief, at 3.) Thus, the Joneses insist, Johnson could not acquire an easement without proving adverse possession for a period of 20 years, that is, an easement by prescription.

This Court has often stated that "[a]n easement is an interest in land and, generally, can be created in only three ways: first, by deed; second, by prescription; and, third, by adverse use for the statutory period." Kirkland v. Kirkland, 281 Ala. 42, 47, 198 So.2d 771, 774-75 (1967). See City of Montgomery v. Maull, 344 So.2d 492 (Ala.1977); Consolidated Foods Corp. v. Water Works & Sanitary Sewer Bd. of City of Montgomery, 294 Ala. 518, 319 So.2d 261 (1975); Hendrix v. Creel, 292 Ala. 541, 297 So.2d 364 (1974); Camp v. Milam, 291 Ala. 12, 277 So.2d 95 (1973); Kratchoville v. Cloverleaf Plaza, Inc., 276 Ala. 562, 165 So.2d 112 (1964); see also England v. Arrington, 647 So.2d 736 (Ala.Civ.App.1993). An easement by prescription is acquired by use of "`the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner.'" Blalock v. Conzelman, 751 So.2d 2, 4 (Ala. 1999) (quoting Bull v. Salsman, 435 So.2d 27, 29 (Ala.1983)).

An easement by "adverse use for the statutory period" requires satisfaction of the nontemporal elements of the prescriptive easement, plus one of the three additional requirements of Ala.Code 1975, § 6-5-200:

"(a) Adverse possession cannot confer or defeat title to land unless:

"(1) The party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded in the office of the judge of probate of the county in which the land lies for 10 years before the commencement of the action;

"(2) He and those through whom he claims shall have annually listed the land for taxation in the proper county for 10 years prior to the commencement of the action if the land is subject to taxation; or

"(3) He derives title by descent cast or devise from a predecessor in the title who was in possession of the land."

(Emphasis added.) If the requirements of "adverse use for the statutory period" are met, then a use will ripen into an easement by adverse possession in 10 years, instead of the 20 years required to establish a prescriptive easement. Downey v. North Alabama Mineral Dev. Co., 420 So.2d 68 (Ala.1982). "Because of the unique nature of the easement interest, it is indeed rare that an easement is claimed under the ten-year rule set out in ... § 6-5-200. The more common method used to claim that an easement has been established is the rule of prescription." Jesse P. Evans, Alabama Property Rights and Remedies § 10.4(b)(2d ed.1998) (footnote ommitted).

Johnson argues that his dispute with the Joneses is properly characterized as a boundary-line dispute between coterminous landowners.² This dispute between Johnson and the Joneses is not, however, a boundary-line dispute between coterminous landowners. The portion of land over which Johnson has placed his driveway,...