Jones v. Newton
Decision Date | 13 July 1984 |
Citation | 454 So.2d 1345 |
Parties | Richard C. JONES, et al. v. Thomas E. NEWTON, et al. 82-1130. |
Court | Alabama Supreme Court |
Stephen W. Drinkard of Drinkard & Drinkard, Prattville, for appellants.
Clifford W. Cleveland, Prattville, for appellees.
This appeal by plaintiffs Richard C. Jones and Barbara T. Jones is from a partial summary judgment in favor of defendants. We affirm.
In December of 1976, appellants, Mr. and Mrs. Jones, purchased a home and lot located at 822 Newton Street, Prattville, Alabama. The lot they purchased was adjacent to, and northeast of, property owned by appellees Thomas E. Newton and William D. Davis, III.
Prior to their purchase of the property, appellants viewed the house and lot with a realtor who, they state in deposition, represented the boundary of the lot they were to purchase was defined by a backyard fence. Appellants further testified that, during the closing transaction, a map was given them which represented the lot to be the entire area enclosed by the backyard fence, rather than a portion of that area. The map to which they refer is depicted in an appendix to this opinion. Neither the realtor nor the prior owners of the property are parties to this suit.
Mr. and Mrs. Jones presented no further evidence of their title to the disputed portion of the backyard property. The legal description of the lot which they bought clearly does not include the entire fenced area; that description was included in its entirety on the deed to the property and all other documents in evidence. Appellants presented no evidence they paid taxes on the entire fenced area, nor is there evidence their occupation of the land has amounted to adverse possession under Alabama law.
After the closing transaction, Mr. and Mrs. Jones took possession of the property and utilized the entire fenced area as a backyard.
In the spring of 1981, appellees Thomas E. Newton and William D. Davis, III, began preparations for the development of a shopping center on property adjacent to and behind the Joneses' lot. Because the proposed shopping center site was zoned as residential property, it was necessary for Newton and Davis to petition the Prattville Planning Commission for rezoning and approval of the site plan. A portion of the property included in the proposed site was the strip of land enclosed by appellants' backyard fence but not included in their property description.
Prior to the presentation of the petition for rezoning to the Planning Commission, Newton and Davis solicited community support for the petition. Newton visited Mr. and Mrs. Jones for the purpose of soliciting their support. Appellants contend Newton intentionally, during that visit, failed to disclose to them the fact that the construction and rezoning would affect a part of the property enclosed by their backyard fence. They state, in deposition, that Newton promised to replace their fence, during construction, with a new fence, but never mentioned the fence would be moved so as to dispossess them of approximately 1,527 square feet which they had previously used as their backyard, and which, they contend, belongs to them.
While waiting for the Commission's decision regarding rezoning, Newton and Davis contracted with appellee H.M. Gipson Land Surveying, Inc., to survey the shopping center site and to supply appellees Bobby Carter and B.S. Carter Construction Company, Inc., with the necessary plans, specifications, and documents for their performance of a site work contract.
When the planning commission approved the shopping center site, Newton contracted with Carter and B.S. Carter Construction Co., Inc., to prepare the site for construction of the shopping center.
In August of 1981, Mr. Jones observed a bulldozer near his backyard. After questioning the workers regarding their intentions, he left to speak with an attorney. When Jones returned, the workers had taken down the old fence and had begun to erect a new fence on the property line as described in the deed held by Mr. and Mrs. Jones.
In December of 1981, appellant filed a five-count complaint, which named Thomas E. Newton, William D. Davis, III, H.M. Gipson Land Surveying Inc., Bobby Carter, and B.S. Carter Construction Company as defendants. That complaint alleges the following offenses by defendants: (1) trespass quare clausum fregit, (2) continuous trespass, (3) private nuisance, (4) invasion of privacy, and (5) wantonness. They also filed a separate complaint against Tommy Newton, wherein the only allegation was fraud. The trial court consolidated the two cases.
In May of 1982, while the shopping center was still under construction, Newton and Davis sold the property to SOWEGA Properties, Inc.; Mr. and Mrs. Jones amended their complaint to add SOWEGA Properties as a defendant to the continuous trespass and private nuisance counts of the original suit.
Defendants filed motions for summary judgment. The trial court granted summary judgment as to all counts of the consolidated action except count one, based on trespass quare clausum fregit. (Thus, summary judgment was granted as to each count to which SOWEGA was named a party and the count remaining involves only the original defendants.) The trial court issued a Rule 54(b), ARCP, certification of finality as to that summary judgment. The issue on appeal is the propriety of the trial court's granting of summary judgment in this action.
Summary judgment is appropriately granted only if the pleadings and affidavits reveal no genuine issues of material fact. Oliver v. Taylor, 394 So.2d 945 (Ala.1981). The moving party has the burden of establishing the absence of a genuine issue of fact. Eason v. Middleton, 398 So.2d 245 (Ala.1981). If a genuine issue of fact must be resolved, so that the nonmoving party could conceivably prevail, the trial court must deny the motion for summary judgment. Horton v. Northeast Alabama Regional Medical Center, Inc., 334 So.2d 885 (Ala.1976). Considering these principles, we proceed to determine the propriety of summary judgment as to the various counts of appellants' complaint.
First, the trial court granted summary judgment as to appellants' allegation that appellees have created a private nuisance, disturbing the peaceable use and enjoyment of appellants' property by developing and operating the shopping center. We find no evidence in the record of such a disturbance.
The record reveals that Newton, Davis, SOWEGA Properties, and their agents have developed a strip of land to which they have title. Appellants have, without apparent mismanagement, built a shopping center on land zoned for commercial development. This court will not anticipate mismanagement. Jackson v. Downey, 252 Ala. 649, 42 So.2d 246 (1949). The doing properly of that which the law authorizes does not constitute a nuisance. Johnson v. Bryant, 350 So.2d 433 (Ala.1977).
When all the evidence appellants presented of a real and substantial invasion of a protected interest is seen in the best light, it is clear to this court that any discomfort and annoyance alleged by appellants is so lacking in substance that the law will refuse to...
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