McGowin Inv. Co. v. Johnstone

• Decision Date: 23 October 1974
• Parties: McGOWIN INVESTMENT COMPANY, a corporation, et al. v. Douglas Inge JOHNSTONE and Mary Jayne Johnstone. Civ. 376.
• Court: Alabama Court of Civil Appeals

Page 286

306 So.2d 286

54 Ala.App. 194

McGOWIN INVESTMENT COMPANY, a corporation, et al. v. Douglas Inge JOHNSTONE and Mary Jayne Johnstone.

Civ. 376.

Court of Civil Appeals of Alabama.

Oct. 23, 1974.

Rehearing Denied Nov. 20, 1974.

Edmund R. Cannon and Jerry A. McDowell, Mobile, for appellants.

James L. May, Jr., Mobile, for appellees.

HOLMES, Judge.

Appellants, McGowin Investment Company, et al., appeal from a judgment of the Circuit Court of Mobile condemning a right of way across appellants' land to connect appellees' land with a public road and assessing damages. The above proceedings were pursuant to Tit. 19, §§ 56--58, Code of Ala.1940 as amended.

Tit. 19, § 56, Code of Ala.1940, reads as follows:

'The owner of any tract or body of land, outside the corporate limits of a municipality, 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 thirty feet over the lands intervening and lying between such tract or body of land and the public road nearest or most convenient thereto.'

Upon a hearing in the Probate Court of Mobile County, appellees' application for the right of way was denied and appeal was taken to the circuit court. After a trial De novo, a judgment was entered by the trial judge granting appellees' application to condemn a right of way over and across the appellants' property. An appeal was then perfected to the Supreme Court of Alabama, but was dismissed because there had been no assessment of damages. The Circuit Court of Mobile County thereafter assessed the damages for the taking of the right of way at $2,966. Appeal was then taken to this court.

As we understand able and distinguished counsel for the appellants, who has favored this court with an excellent brief, the amount of damages is not in issue; the only issue as presented by the assignments of error is whether the appellees have a right to condemn.

Appellants' contention is bottomed on the premise that appellees have access from their land to a public road by means of implied way of necessity over the remaining land of their grantors and, therefore, should not be allowed access over the lands of a stranger. Appellants further contend that the appellees are not the true 'owners' of the property and, therefore, have no standing to proceed under Tit. 19, § 56 et seq., Code of Ala.1940, as amended.

The record reveals that Verna and Edward Odom conveyed 180 acres to Duke and Gaston, predecessors in title to appellees' 17.5 acres, in June 1970. This 180-acre tract was composed of three stacked 40's in the east and just west thereof and adjoining a 60-acre parcel. The 180 acres conveyed to Duke and Gaston were landlocked and therefore the Odoms granted to Duke and Gaston, their heirs and assigns, a perpetual easement or right of way over an existing roadbed to Dawes Road (public highway south of the Duke and Gaston property).

Appellee Johnstone testified that during the fall of 1970 he had been looking for acreage on which to build a home; that he was first shown the Duke-Gaston land in February 1971. The parties, according to the record, bargained back and forth during the year. The sale was consummated on January 21, 1972.

Appellee made a recited down payment of $10 and executed a promissory note for $10,500, the unpaid balance. In return, appellee received 17.5 acres in the northwest corner of the 60-acre parcel bordering on land owned by McGowin. However, Duke and Gaston reserved 30-foot wide rights of way lying on the west and north boundaries of appellees' property, and therefore actually bordering on appellants' land, and running the entire distance of the conveyance.

Appellees, realizing they were landlocked, had the conveyance made from Duke and Gaston to appellees contingent on appellees getting a right of way for ingress and egress. To this end the parties agreed that whatever amount appellees had to pay on a condemnation for access over and above $400 would come off the balance of the promissory note. Also, that as long as any condemnation suit is pending, whether in trial court or on appeal, no interest accrues or is payable on the note, nor is any of the principal payable. Appellee testified that he made three monthly payments of $73 each on the note before filing suit for condemnation after his efforts to obtain a permanent, private, right of way from appellant was unsuccessful. The monthly payments have therefore been tolled since early 1972. If the condemnation suit is unsuccessful appellee can reconvey the land in cancellation of the note.

It is these conditions in the conveyance pertaining to a condemnation suit, coupled with the fact that if the suit is successful Duke and Gaston will also be able to use the right of way and therefore increase the value of their remaining land, a fact admitted at trial by Duke, that is apparently the basis of appellants' contention that appellees are not the true owners of the land, but merely agents for Duke-Gaston.

Appellees' testimony, however, is that they purchased the land to build a private home on and is in no way involved with Duke-Gaston other than the purchase of this property.

Testimony by appellee Johnstone, Mr. Odoms and Mr. Duke as to the physical environment to be encountered for any proposed right of way south over the remaining Duke-Gaston land to the easement granted by Odoms revealed that the area contained swamps, ravines, and creeks. Appellee testified that it would require the building of three bridges and a cost of $30,000 to provide a right of way. The necessary length of the road would be 6/7 of a mile as compared to approximately 1,200 feet over appellants' land.

Appellees, in brief, essentially rely on Tenison v. Forehand, 281 Ala. 379, 202 So.2d 740; and Starnes v. Diversified Operations, Inc., 47 Ala.App. 270, 253 So.2d 330, the latter case having been authored by our now Presiding Judge Wright. Both of these cases, as we perceive them, are to the effect that the trial court must factually determine whether or not a condemnor has a Reasonably adequate way to...