Snider v. Alabama Power Co.

• Decision Date: 03 June 1977
• Citation: 346 So.2d 946
• Parties: J. H. SNIDER et al. v. ALABAMA POWER COMPANY. SC 1928.
• Court: Alabama Supreme Court

Page 946

346 So.2d 946

J. H. SNIDER et al. v. ALABAMA POWER COMPANY.

SC 1928.

Supreme Court of Alabama.

June 3, 1977.

John R. Phillips for Phillips & Watson, Anniston, for appellants.

H. Hampton Boles for Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee.

MADDOX, Justice.

This is an appeal from a final decree entered in favor of appellee, Alabama Power Company, against appellants, J. H. Snider, Gartice Snider, H. M. Fagan, Jr., Leola Fagan, and Mrs. W. E. Thompson. We affirm.

On September 8, 1972, Alabama Power Company filed a bill of complaint in the circuit court of Calhoun County, in equity, against appellants, seeking to enjoin them from interfering with Alabama Power's electric transmission line easement and to require appellants to remove a commercial building from the easement. It is undisputed that appellants constructed, in 1972, and presently maintain and own, the building in question, and that this building is situated directly under Alabama Power's 44,000 volt transmission line.

Alabama Power claims ownership of the right of way through a 1915 deed and, alternatively through prescription. By instrument, dated September 16, 1915, Thomas Owens conveyed a transmission line easement to Alabama Power over and across the following land in Calhoun County:

"Vacant lot or parcel of land at Weaver's Station located on the South side of the public road and bounded on the east by a lot with Storehouse on it belonging to J. H. Fite, on the South by an alley, on the west by lot with storehouse on it known as Elgan Store. Said lot being a part of the NE 1/4 of NE 1/4 of Sec. 5, T 15, R. 8 E."

Appellants point out, however, that the property description contained in the 1915 deed shows the easement to be in the NE 1/4 of the NE 1/4 of Section 5, Township 15, Range 8 East, whereas in paragraph 5 of Alabama Power's complaint, the easement is shown to be in the NE 1/4 of the SE 1/4 of Section 5, Township 15 South, Range 8 East. Even though the description in the 1915 conveyance recites that the lot is in the "NE 1/4 of NE 1/4 of Sec. 5 . . .," Alabama Power contends that the numerous exhibits and testimony introduced during the trial below establish that the correct description of the lot was located in the NE 1/4 of the SE 1/4 of Sec. 5.

The trial court, after hearing the evidence ore tenus, ruled in favor of Alabama Power and ordered appellants to remove the building from Alabama Power's right of way. The final decree of the lower court reads, in pertinent part:

"1. The plaintiff, Alabama Power Company, is the owner of an easement or right of way over the strip of land described in Paragraph 5 of the Bill of Complaint filed herein; that said right of way or easement is for the purpose of constructing, operating and maintaining electric transmission lines and appliances necessary or convenient in connection therewith; that the width of such easement or right of way, though not stated in the instrument granting the right of way to plaintiff, is thirty (30) feet and that such width is a reasonable, convenient and accessible width for the right of way and uses thereof.

"2. That the plaintiff, Alabama Power Company, is the owner of the right of way thirty (30) feet in width described below and in Paragraph 5 of the Bill of Complaint through the conveyance from Thomas Owens by deed dated September 16, 1915, and recorded in Book 177, Page 512 in the office of the Judge of Probate of Calhoun County, Alabama; and in the alternative, through prescription; said right of way being described as follows: (Description).

"3. That the defendants, J. H. Snider and H. M. Fagan, constructed or had constructed a concrete block building and related facilities designed and intended to be used for commercial purposes on the land involved in this suit at a point almost directly beneath the 44,000 volt transmission line of plaintiff; that said structure conflicts with and materially interferes with the paramount rights of plaintiff to maintain the right of way for the purposes stated in that: (a) such structure constitutes a hazard to plaintiff's transmission lines; (b) restricts and obstructs the full and free enjoyment of said easement; (c) may, if allowed to continue for the descriptive period, extinguish pro tanto, a portion of plaintiff's right of way area; and (d) increases plaintiff's risk of and exposure to claims for damage to property, injury or death of persons arising out of full enjoyment by plaintiff of its right of way across the land of defendants.

"It is, therefore, ORDERED, ADJUDGED and DECREED by the Court as follows:

"1. The relief prayed for by plaintiff in its Bill of Complaint be and the same is hereby allowed.

"2. Plaintiff, Alabama Power Company, is the owner of an easement or right of way thirty (30) feet in width as described in Paragraph 5 of its Bill of Complaint filed herein and such title in plaintiff is forever determined and quieted against defendants and anyone claiming under defendants or any of them.

"3. Defendants, J. H. Snider and H. M. Fagan, Jr. and their respective wives, agents, servants, employees, successors and assigns, and all persons in active concert or participation with them, be and the same are hereby:

"(a) permanently enjoined and restrained from maintaining or allowing to remain on plaintiff's said right of way or easement any building or any portion of any building, structure, shed or improvement which encroaches upon, exists on or extends over onto the plaintiff's said right of way; and

"(b) The said defendants, Mr. and Mrs. J. H. Snider and Mr. and Mrs. H. M. Fagan, Jr., are hereby commanded, ordered and directed to remove or have removed from the plaintiff's said right of way area, without expense to the plaintiff, said concrete block structure and the facilities thereto attached and any and all buildings, sheds or improvements now existing within such right of way as hereinbefore described and that such removal shall be completed not later than 45 days from the date of the decree, all at the expense of the said defendants."

The basic issue to be determined is whether there is sufficient evidence to support the lower court's finding that Alabama Power acquired an easement or right of way across the property of the appellants by deed or prescription, and if so, does the appellants' use of the servient estate interfere with the Alabama Power's use of the right of way?

Alabama Power concedes that the description in the 1915 deed contains two incorrect designations. The two errors contained in the description are:

(1) The description recites that the lot is in the NE 1/4 of NE 1/4 of Sec. 5, when in fact,...