Long v. Jefferson County

• Decision Date: 30 July 1993
• Parties: Robert D. LONG and Judy L. Long v. JEFFERSON COUNTY. 1920146.
• Court: Alabama Supreme Court

Page 1130

623 So.2d 1130

Robert D. LONG and Judy L. Long v. JEFFERSON COUNTY.

1920146.

Supreme Court of Alabama.

July 30, 1993.

Mark E. Martin, Birmingham, for appellants.

Charles S. Wagner, Asst. County Atty., Birmingham, for appellee.

HOUSTON, Justice.

The plaintiffs, Robert D. Long and his wife, Judy L. Long, appeal from a summary judgment for the defendant, Jefferson County, in this action to recover damages for trespass and negligence. We affirm in part, reverse in part, and remand.

In 1973 the plaintiffs purchased a house in a subdivision in Jefferson County. A title examination made in 1973 by Chicago Title Insurance Company ("Chicago Title") failed to disclose that in 1902 the county had acquired an easement by condemnation across what is now the plaintiffs' property and that in 1907 the county had constructed an underground sewer on its easement. The petition for condemnation, the commission to assess damages, and the report of the commissioners were all recorded in the final record of the probate court.

The plaintiffs' house was built in 1939 directly over the sewer, and a cast iron pipe was installed in the floor of the basement through which sewage could be discharged directly into the sewer. The ground around and under the plaintiffs' house began to sink in October 1987, causing structural damage to the house. After being notified of the problem by the plaintiffs, county representatives inspected the plaintiffs' property and informed them that the county's sewer had collapsed. The county representatives also told the plaintiffs that the county had an easement across the plaintiffs' property and that the county would not assume responsibility for any of the damage. The county did reroute the sewer and it filled that section of the old sewer that ran under the plaintiffs' house with concrete to prevent further deterioration. The plaintiffs filed this action on October 25, 1989. ¹

Our standard of review in this case is well settled. The summary judgment was proper if there was no genuine issue of material fact and the county was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on the county to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. If it made that showing, then the burden shifted to the plaintiffs to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against them. In determining whether there was a genuine issue of material fact, we must view the evidence in the light most favorable to the plaintiffs and must resolve all reasonable doubts against the county. Knight v. Alabama Power Co., 580 So.2d 576 (Ala.1991). Because this case was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence" rule. Ala.Code 1975, § 12-21-12. "Substantial evidence" has been defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), citing Rowden v. Tomlinson, 538 So.2d 15, 19 (Ala.1988) (Jones, J., concurring). Simply stated, an issue is genuine if reasonable persons could disagree. Olympia Produce Co. v. Associates Financial Services of Alabama, Inc., 584 So.2d 477 (Ala.1991).

The following issues have been presented for our review:

1) Whether the county's sewer easement, acquired by condemnation in 1902, was valid as to the plaintiffs;

2) Whether the county acquired a sewer easement across the plaintiffs' property under the doctrine of prescription;

3) Whether the county owed a duty to the plaintiffs to exercise reasonable care in the maintenance and operation of its sewer system;

4) Whether the county is shielded from liability under the substantive immunity doctrine as discussed and applied in Rich v. City of Mobile, 410 So.2d 385 (Ala.1982); and

5) Whether the plaintiffs' claims are barred by the applicable statutes of limitations.

With regard to the first issue, the plaintiffs contend that the condemnation judgment was void as to them under Ala.Code 1975, § 35-4-90, which provides in pertinent part as follows:

"(a) All conveyances of real property, deeds, mortgages, deeds of trust or instruments in the nature of mortgages to secure any debts are inoperative and void as to purchasers for a valuable consideration, mortgagees and judgment creditors without notice, unless the same have been recorded before the accrual of the right of such purchasers, mortgagees or judgment creditors."

The plaintiffs argue that they were unaware when they purchased their house that it had been built above a sewer. They also maintain that the condemnation proceeding was not reflected in the real property records of the probate court and, therefore, that it was outside their chain of title and did not constitute constructive notice to them of the existence of the county's easement.

The plaintiffs rely on Fort Payne Water Works Board v. Sparks, 600 So.2d 230 (Ala.1992), a case factually similar to the present case, in support of their argument that the county's condemnation proceeding was outside their chain of title and, thus, that it did not provide them with constructive notice of the county's sewer easement. In Fort Payne, this Court, relying on State v. Abbott, 476 So.2d 1224 (Ala.1985), held that the Sparkses did not have constructive knowledge of an easement that had been acquired by the water works board through a 1984 condemnation proceeding because there was no evidence of the condemnation proceeding in the "real property records" of the probate court when they purchased their property. Responding to the board's argument that the recording requirement of § 35-4-90 was satisfied because the petition for condemnation was recorded in the final record of the probate court and the condemnation judgment was recorded in the probate court minutes, this Court stated:

"Although the record in the present case reveals that the petition for condemnation was recorded in the final record of the probate court and that the condemnation judgment was recorded in the minutes of the probate court before the Sparkses purchased the property, the condemnation order was not recorded in the real property records of the probate court until June 3, 1988, when it was filed for recordation. Therefore, a search of the real property records prior to June 3, 1988, would not have revealed the existence of the easement. Consequently, we reach here a conclusion similar to that reached in Abbott: because the judgment of condemnation in which the prohibitive easement is contained was not recorded in the real property records of the probate court until after the Sparkses had purchased the property, the easement was outside the chain of title to the property, and the Sparkses, because they undisputedly purchased the property for value, cannot be held to have had constructive notice of the easement."

600 So.2d at 232.

In Abbott, the state was seeking enforcement of a right-of-way that it had acquired through a 1939 condemnation proceeding. The defendants had purchased the property in 1965, and they argued that they had not been provided with notice as to the existence of the right-of-way because the documents relating to the condemnation had not been recorded in the probate court at the time they purchased the property. Thus, in Abbott, through an oversight and contrary to the probate judge's specific instructions, the condemnation judgment was not filed for record in the probate court. The specific issue addressed in Abbott was whether a condemnation judgment was a "conveyance of real property" within the meaning of § 6887, Code of 1923 (now § 35-4-90). This Court concluded in Abbott that a condemnation judgment operates as a transfer of title to land from the landowner to the condemning authority upon payment of the required compensation, see Southern Natural Gas Co. v. Ross, 290 Ala. 195, 275 So.2d 143 (1973), and, as such, must be recorded in the probate court to be operative as to future purchasers for value. However, this Court did not hold in Abbott, as was suggested in Fort Payne, that a purchaser for value is not provided with constructive notice of a condemnation proceeding noted in the final record of the probate court. Consequently, Abbott does not support this Court's holding in Fort Payne.

Pursuant to Ala.Code 1975, § 35-4-50, "[c]onveyances of property, required by law to be recorded, must be recorded in the office of the judge of probate." (Emphasis added.) Section 35-4-51 provides in pertinent part:

"Except as may be otherwise provided by the Uniform Commercial Code, all deeds, mortgages, deeds of trust, bills of sale, contracts or other documents purporting to convey any right, title, easement, or interest in any real estate or personal property and all assignments of mortgages, deeds of trust or other securities for debt or extension agreements with respect thereto, when executed in accordance with law, shall be admitted to record in the office of the probate judge of any county. Their filing for registration shall constitute notice of their contents."

Section 35-4-58 states in part:

"Judges of probate are to procure, at the expense of their counties, large and well-bound books, in which must be recorded in a fair hand, or by printing the same, or by the use of a typewriter or other writing or printing, photograph or photostat machine, word for word, conveyances of property and all other instruments authorized to be recorded, with the acknowledgments, proofs, schedules, plats, surveys, etc., belonging thereto; and, at the foot or in the margin of the record of each conveyance or other instrument, the day of the month and year of the delivery of the same for record must be specified."

Section 35-4-63 reads as follows:

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