Robichaux v. AFBIC Development Co.

• Court: Supreme Court of Alabama
• Writing for the Court: HOUSTON; HORNSBY
• Citation: 551 So.2d 1017
• Parties: Robert P. ROBICHAUX and Barry R. Robichaux v. AFBIC DEVELOPMENT COMPANY. 88-608.
• Decision Date: 01 September 1989

Page 1017

551 So.2d 1017 Robert P. ROBICHAUX and Barry R. Robichaux
v.
AFBIC DEVELOPMENT COMPANY. 88-608. Supreme Court of Alabama. Sept. 1, 1989.

Wayne P. Turner of Turner, Wilson & Christian, Montgomery, for appellants.

Harry Cole and Alex L. Holtsford, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.

HOUSTON, Justice.

Robert P. Robichaux and Barry R. Robichaux, lower landowners, sued AFBIC Development Company ("AFBIC"), an upper landowner, alleging a wrongful alteration of the flow of natural surface water onto their property, which they alleged caused injury to their property. They sought damages under the theories of trespass and nuisance. AFBIC filed a motion for summary judgment, which the trial court granted. The Robichauxs appealed. We affirm.

We recognize the common law right of a lower landowner not to be injured by an upper landowner's interference with the natural drainage of surface water onto the lower property. An alteration in the natural flow of surface water would be a wrongful interference with the lower landowner's possessory rights and could constitute trespass or nuisance. See Ala.Code 1975, § 6-5-213; Kay-Noojin Development Co. v. Kinzer, 259 Ala. 49, 65 So.2d 510 (1953); Sargent v. Lambert Construction Co., 378 So.2d 1153 (Ala.Civ.App.1979); see also Mitchell v. Mackin, 376 So.2d 684 (Ala.1979); Borland v. Sanders Lead Co., 369 So.2d 523 (Ala.1979); and City of Mountain Brook v. Beatty, 292 Ala. 398, 295 So.2d 388 (1974).

Page 1018

Summary judgment for a defendant is proper when there is no genuine issue of material fact as to any element of a cause of action and the defendant is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P.; Wilson v. Brown, 496 So.2d 756 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986). If there is substantial evidence of every element of a cause of action, summary judgment is inappropriate in the absence of some factually undisputed defense. Ala.Code 1975, § 12-21-12; Perry v. Hancock Fabrics, Inc., 541 So.2d 521 (Ala.1989). In determining whether there is substantial evidence of every element of a cause of action in this case, this Court must review the record in a light most favorable to the plaintiffs and must resolve all reasonable doubts against the defendant. Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986).

In support of its motion, AFBIC introduced a document granting an easement from the Robichauxs' predecessors in title, William M. and Norma T. Watts, to the City of Montgomery ("City"); the deed from the Wattses to the Robichauxs; and an affidavit and deposition of George Goodwyn, the engineer who prepared the plans and specifications for the City's requirement for an overall storm drainage system for Fox Hollow Subdivision ("Subdivision") in the City of Montgomery. AFBIC is the developer of the subdivision, which was developed in four phases with each phase represented on a separate plat. As required by the City for the development of the subdivision, AFBIC purchased a standard city storm drainage easement, buying it for $14,000 from the Wattses, who were the predecessors in title and the owners of the adjoining property. The easement document, issued with the name of the City as grantee, in pertinent part reads as follows:

"Whereas, there is installed and in place ... a surface water drainage pipe system, the terminus of which is located approximately 160 feet north of the southeast corner of said subdivision, and

"....

"Whereas, the said land of the Grantors receives surface water from said surface water pipe system; and

"Whereas, it is the desire of the Grantors to convey to the [City] the right and privilege of discharging, spilling, dumping or draining onto the lands of the Grantors surface drainage water from the aforesaid surface water pipe system; ...

"... Grantors do hereby GRANT, BARGAIN, SELL and CONVEY UNTO THE [CITY] ... the right and privilege of discharging, spilling, dumping or draining surface water onto and across the lands of the Grantors located in the [City].

"....

"It is expressly understood and agreed that the undersigned [the Wattses] reserve ... the right and privilege, upon the development of their land ... or at any time they ... shall deem it desirable so to do, to alter the flow of such drainage with the understanding, however, that the said surface water herein provided for shall be received and allowed to be discharged, spilled, dumped or drained into such altered system of drainage." (Emphasis supplied.)

Thereafter, the City approved the plans for the development of phases three and four of this subdivision. These plans and the spillage easement have been on file with the City since 1974.

When phase three was planned and built in 1979, the storm drainage system consisted of a 30-inch concrete drainage pipe, running to within 150 feet of the alleged terminus point, where it joined a natural ditch that took the water onto the Robichaux property.

AFBIC contends that the current terminus point (160 feet north of the southeast corner of phase four), adjacent to the Robichauxs' property, from which point the water flowing onto the Robichauxs' property is discharged, complies with the terms of the easement and the plans for the development of the subdivision as approved by the City and that there is no genuine issue of material fact as to an alleged unlawful

Page 1019

interference with the flow of surface water onto the Robichauxs' property, which is a necessary element of causes of action for trespass and nuisance. We agree.

The well-settled law in Alabama is that "one who purchases land subject to, or with notice of, an easement, takes the land subject to that easement." See Bruner v. Walker, 366 So.2d 695, 696 (Ala.1978). The recorded deed conveying the property from the Wattses to the Robichauxs shows that the Robichauxs purchased the property subject to the easement; therefore, they had actual knowledge of that easement. Furthermore, the easement was properly recorded in the Montgomery County probate office. That recording...