Studdard v. South Central Bell Tel. Co.

• Decision Date: 24 February 1978
• Parties: J. C. STUDDARD, etc. v. SOUTH CENTRAL BELL TELEPHONE COMPANY, a corporation. 77-22.
• Court: Alabama Supreme Court

Page 139

356 So.2d 139

J. C. STUDDARD, etc. v. SOUTH CENTRAL BELL TELEPHONE COMPANY, a corporation.

77-22.

Supreme Court of Alabama.

Feb. 24, 1978.

James F. Hinton, Gadsden, for appellants.

Anita Leslie Miller, Birmingham, James D. Pruett, Gadsden, for appellee.

BLOODWORTH, Justice.

Defendant, J. C. Studdard, appeals from the grant of a motion for summary judgment for plaintiff, South Central Bell Telephone Company. We affirm.

In 1969, J. C. Studdard and wife, Grace Studdard, conveyed by deed a "right-of-way" for a public road to Etowah County. The deed stated the right-of-way "shall be 25 feet in width on each side of the center line of said road, as it is now located and staked out by Etowah County or as much of our lands as is required to make a 50 foot right-of-way across our lands, on Road known locally as Heath Herring (Chris Lyn Dr.) Road. . . ." In 1973, the telephone company was granted permission by the Etowah County Engineer, pursuant to Tit. 23, § 48, Code of Alabama 1940, (§ 23-1-85 Code 1975) to install a buried telephone cable within the right of way of said road. The cable was buried between 16.5 feet and 18 feet from the center line of the road.

In June, 1976, J. C. Studdard's brother-in-law damaged plaintiff's underground cable while he was erecting a fence for the Studdards on their property. Plaintiff brought suit for negligence. Defendant J. C. Studdard answered with a general denial and interposed the defense of contributory negligence. In addition, defendant filed a counterclaim for trespass to real property, which allegedly occurred when plaintiff installed the cable without permission or authority to do so. Plaintiff answered defendant's counterclaim with a general denial and later moved for summary judgment on defendant's counterclaim. Defendant also moved for summary judgment on plaintiff's complaint and on defendant's counterclaim.

The trial court held, inter alia, that plaintiff was entitled to summary judgment; that defendant's motion for summary judgment on its counterclaim was due to be denied; that there was no just reason for delay; and, that this was a final judgment. This appeal then followed.

Defendant J. C. Studdard contends the trial court erred in granting a summary judgment for plaintiff on his counterclaim for trespass, because, he claims the underground cable was installed at an improper point, and because the question regarding proper placement of the cable is a "genuine issue of material fact," which precludes summary judgment. We must disagree.

A restatement of our rules respecting summary judgment is in order. A motion for summary judgment may be granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Isbell v. City of Huntsville, 295 Ala. 380, 330 So.2d 607 (1976).

The movant for summary judgment has the burden of showing the absence of any genuine issue of material fact, and all reasonable doubts touching the genuine issue of material fact must be resolved against the moving party. Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976).

Moreover, if there is a scintilla of evidence supporting the nonmoving party, a summary judgment is inappropriate. Wilbanks v. Hartselle Hospital, Inc., 334 So.2d 870 (Ala.1976).

Where, as here, however, all the basic facts are undisputed and the matter is one of interpretation or of reaching a conclusion of law by the court, the court may grant a motion for summary judgment. Bible Baptist Church v. Stone, 55 Ala.App. 411, 316 So.2d 340 (1975).

We think it is clear that what is involved in this case is purely a question of law.

Placement of telephone lines in Alabama is governed by Tit. 23, § 48, Code (§ 23-1-85 Code 1975) which provides, as follows:

" § 48. (1367) (5817) Right to construct telephone and telegraph lines along highway. The right of way is granted to any person or corporation having the right to construct the telegraph or telephone lines within this state to construct them along the margin of the right of way of public highways, subject to the removal or change by the court of county commissioners, board of revenue, or other like governing body of the county, except in cases where the highway department has jurisdiction over such highway. (1927, p. 348.)" (Emphasis supplied.)

There is no dispute as to the location of the buried telephone cables at the time the damage was done to them. Both sides agree on that location. Therefore, the trial judge was faced exclusively with a question of law, the interpretation of the statutory phrase "along the margin of the right of way of public highways," contained in Tit. 23, § 48, supra. What he had to determine, in effect, in granting summary judgment for the plaintiff on defendant's counterclaim for trespass, was that the location of the cables between 16.5 feet and 18 feet from the center line of the road, fell "along the margin of the right of way of public highways," which right of way extended 25 feet in width from the center line, according to the deed, as a matter of law.

Defendant relies on Gilbert v. Southern Bell Telephone and Telegraph Co., 200 Ala. 3, 75 So. 315 (1917), which was decided according to § 5817, Code of Alabama 1907, the statutory predecessor of Tit. 23, § 48, Code of Alabama 1940, as supporting their contention that the location of the cables was not "along the margin of the right of way of public highways." In Gilbert, this court, in holding that the giving of a certain jury charge was not improper, discussed the meaning of the phrase "along the margin of public highways" as the statute then read, viz:

". . . Telegraph and telephone companies, under their statute license to construct their lines along the margin of public highways (Code § 5817) could not, for example, take advantage of the convenient windings of travel due to difficulties in the road, to intrude their...