Romar Development Co., Inc. v. Gulf View Management Corp.

• Decision Date: 01 July 1994
• Parties: ROMAR DEVELOPMENT COMPANY, INC., and Interim Land Company v. GULF VIEW MANAGEMENT CORPORATION and Midtown Restaurants Corporation. 1921521.
• Court: Alabama Supreme Court

Page 462

644 So.2d 462

ROMAR DEVELOPMENT COMPANY, INC., and Interim Land Company v. GULF VIEW MANAGEMENT CORPORATION and Midtown Restaurants Corporation.

1921521.

Supreme Court of Alabama.

July 1, 1994.

William J. Baxley and David McKnight of Baxley, Dillard, Dauphin & McKnight, Birmingham, and Bayless Biles of Wilkins, Bankester, Biles & Wynne, Bay Minette, for appellants.

Steven F. Casey and Terri E. Wilson of Balch & Bingham, Birmingham, and Robert A. Wills of Wills & Simon, Bay Minette, for appellees.

On Application for Rehearing

PER CURIAM.

The opinion of December 30, 1993, is withdrawn, and the following opinion is substituted therefor.

This case involves a dispute over whether Gulf View Management Corporation ("Gulf View") has an easement over a road known as "Loop Road," which is owned by Romar Development Company, Inc. ("Romar"), and Interim Land Company ("Interim"), and, if so, the extent of the easement. The easement claimed is the right of tenants, employees, and invitees of Gulf View, and employees and invitees of the tenants of Gulf View, to access over Loop Road and from Loop Road to Gulf View Square Shopping Center ("Gulf View Square").

Interim and The Square Associates ("Associates"), Gulf View's predecessor in title, executed a contract on March 15, 1984, which contained the following relevant provisions:

"B. Proposed Roadway. Interim proposes to construct an asphalt roadway within a 60-foot wide strip of land, which strip runs along the Western boundary of the Property from Alabama Highway 182 Northerly to the Northwest corner of the Property [The Square].... Interim agrees to give to Gulf View for itself, its tenants, employees and invitees, and successors and assigns, rights of ingress and egress to and from said proposed roadway to the Property, all at their own risk and without any liability on the part of Interim or its successors or assigns for the maintenance or condition of said roadway. Gulf View agrees that no such permitted use of said strip or roadway will damage the Property and will promptly repair at its own cost and expense any damage that may occur to same by any permitted user claiming under Gulf View.

"C. Interim hereby agrees to make available for a period of twenty-four (24) months from date hereof to Gulf View in connection with its development of the shopping center, at least twenty-six (26) sewer taps at a price equal to the sum of Three Thousand, Five Hundred and 00/100 Dollars ($3,500.00) per tap, plus an amount equal to twelve percent (12%) per annum from date hereof to date of payment. Such sewer taps shall be purchased by Gulf View for cash, and shall be made available by Interim in a timely manner in connection with the development of the shopping center.

"D. Survival of Representations and Warranties. The delivery by Interim and the acceptance by Gulf View of the Deed shall not be deemed full compliance by Interim of its obligations under the Contract dated December 12, 1983, and the parties expressly agree that all representations and warranties on the part of Interim and Gulf View under the said Contract and hereunder shall survive the closing and the delivery of the Deed and shall remain in full force and effect.

"E. Gulf View covenants and agrees to commence site preparation for the construction of a shopping center on the property described.... Grantor, its successors and assigns, reserve the right to approve the site plan, architectural plan and buffer regions of said shopping center, which approval shall not be unreasonably withheld. A preliminary site plan prepared by Donald N. Holley, AIA, dated March 7, 1984, is hereby approved by Interim.

"F. Binding Effect. This Agreement is and shall be binding upon the parties hereto and their successors and assigns."

After the contract was executed, Interim conveyed The Square to Associates. Interim conveyed the remaining land owned by it, including Loop Road, to Romar.

Pursuant to the contract, Interim approved a proposed site plan for The Square that included the proposed construction of three entrances to the shopping center from Loop Road. Both The Square and Loop Road, along with the three "curb cuts" allowing access to the shopping center, were constructed according to the plan.

After Associates defaulted on a loan, Gulf View acquired title to The Square on February 10, 1989, by foreclosure deed. Until October 16, 1992, tenants of Gulf View, and employees and invitees of Gulf View and its tenants, had unhampered access to The Square from Loop Road.

On October 16, 1992, agents of Interim blocked two of the entrances from Loop Road to the shopping center. Interim claimed that it was owed substantial sums for providing sewer taps pursuant to paragraph C of the contract, which is as follows:

"C. Interim hereby agrees to make available for a period of twenty-four (24) months from date hereof to Gulf View in connection with its development of the shopping center, at least twenty-six (26) sewer taps at a price equal to the sum of Three Thousand Five Hundred and 00/100 Dollars ($3,500.00) per tap, plus an amount equal to twelve percent (12%) per annum from date hereof to date of payment. Such sewer taps shall be purchased by Gulf View for cash, and shall be made available by Interim in a timely manner in connection with the development of the shopping center."

Gulf View and a tenant of The Square, Midtown Restaurants, sued to enjoin the blockade and sought a declaration of their rights under the contract. Romar and Interim counterclaimed, seeking restitution for their expenses incurred in providing the taps and in performing maintenance on Loop Road. On June 25, 1993, the trial court entered a judgment holding that Gulf View had an easement of access to Loop Road, and a right-of-way over the entirety of Loop Road. It also held that the counterclaim was barred by Ala.Code 1975, § 6-2-34(9), the statute of limitations applicable to claims for breach of contract, and awarded Gulf View attorney fees. Romar and Interim appealed.

I. Easement

In Cleek v. Povia, 515 So.2d 1246 (Ala.1987), this Court recognized that a contract to create an easement was enforceable. Although the usual case presents the "reciprocal easement" situation, where adjacent landowners contract for the common use of some property or area, that is not a requirement for a contract creating an easement. "Equitable relief has been extended not only to contracts containing a promise to transfer an easement in the future, but also to contracts found to manifest a present intent to create an easement." 3 R. Powell, Powell on Real Property, § 408 (1985). As we observed in Cleek, "Many jurisdictions have followed Powell in the creation of easements by contract." Cleek, at 1248.

The trial court properly found that the March 15, 1984, contract created for Associates an easement for the use of Loop Road and that this easement is now in favor of Gulf View, as successor of Associates. However, because that contract created the easement, that contract also defines the extent of the easement. As to the extent of the easement, we disagree with the findings of the trial court.

Paragraph B, of the contract, in which the extent of the easement is defined, describes only a "60-foot wide strip of land, which strip runs along the Western boundary of the Property from Alabama Highway 182 Northerly to the Northwest corner of the Property." (Emphasis added.) This provision clearly and unambiguously describes a 60-foot-wide strip of land running generally north and south in a line bordering the west side of Gulf View Square. It thus neither requires, nor, indeed, permits, judicial construction. P & S Business, Inc. v. South Central Bell Telephone Co., 466 So.2d 928, 931 (Ala.1985); Kinnon v. Universal Underwriters Ins. Co., 418 So.2d 887, 888 (Ala.1982).

However, the trial court's order of judgment defined the extent of the easement in the following manner:

"In light of the above findings of fact and conclusions of law, the court ORDERS as follows:

"1. That plaintiff Gulf View, each of the future owners of Gulf View Square or any portion thereof, the successors and assigns of plaintiff Gulf View and/or any such future owner, each present and each future tenant ... of any portion of Gulf View Square, each present and each future employee of plaintiff Gulf View, any such future owner and/or any such tenant and each present and each future invitee of plaintiff Gulf View, any such future owner and/or any such tenant (collectively the 'Benefited Parties'), have and shall have the right to use and enjoy, in common with others, a non-exclusive perpetual easement on, across and along the strip of land, sixty feet in width, commencing on the western boundary of Gulf View Square at the intersection of such strip with the north right-of-way of Alabama Highway 182 and continuing northward, then eastward, then southward (i.e., in a loop) to again intersect with said Alabama Highway 182, and also on, across and along all paved portions of the roadway, whether or not contained within such sixty-foot strip, commencing adjacent to the western boundary of Gulf View Square at the intersection of said roadway and Alabama Highway 182 and continuing northward, then eastward, then southward to again intersect with Highway 182 (the areas within which either such sixty-foot strip or such paved roadway, or both, are located being referred to below as the 'Easement Area'), for ingress and egress for pedestrian and/or vehicular traffic in either direction, including without limitation for ingress and egress to and from Gulf View Square via Alabama Highway 182.

"2. That the defendants and each successive owner of the said Loop Road are obligated to maintain a paved roadway within the sixty-foot wide strip described in Paragraph 1 above suitable for ingress and egress for pedestrian and/or vehicular traffic consistent with the rights described in said Paragraph 1.

"3....