Templeman v. Resmondo

• Decision Date: 24 April 1987
• Citation: 507 So.2d 494
• Parties: Charles Mark TEMPLEMAN, et al. v. Carl RESMONDO and Baldwin County. 85-1192.
• Court: Alabama Supreme Court

Page 494

507 So.2d 494

Charles Mark TEMPLEMAN, et al. v. Carl RESMONDO and Baldwin County.

85-1192.

Supreme Court of Alabama.

April 24, 1987.

William M. Lyon, Jr., of McFadden, Riley & Lyon, Mobile, for plaintiffs.

Julian B. Brackin, Jr., of Brackin & Chandler, Foley, for defendant.

MADDOX, Justice.

The issue presented on appeal is whether the trial court erred in determining that a certain street located in Baldwin County (Orange Street) is a public street rather than a private street. The trial court made its determination after an ore tenus hearing, and also determined that a pier constructed on the street, and extending over and into Palmetto Creek, is a public pier. We affirm.

The basic facts are as follows: In November 1983 Carl Resmondo (defendant) cleared the land and constructed a pier on the lower portion of Orange Street and began using Orange Street for access to Palmetto Creek. The plaintiffs, Charles Mark Templeman, John L. Gwaltney, and Elizabeth Sanders, soon thereafter commenced this action in the Baldwin County Circuit Court. The property of the plaintiffs constitutes most of the property within the Perdido Beach resubdivision abutting the street shown on the plat as Orange Street. The plaintiffs alleged in their complaint that Orange Street was never opened to the public and was never properly dedicated as a public street. They further alleged that Resmondo trespassed when he cleared the land and constructed a pier on the lower portion of Orange Street. They asked the court to declare that Orange Street had not been dedicated to the public as a street, and also requested injunctive relief against Resmondo to enjoin him from trespassing on Orange Street.

The plat of the resubdivision of Perdido Beach was recorded March 11, 1920. The plat of the prior subdivision was recorded December 29, 1900, and contained a single roadway fronting and paralleling Palmetto Creek. The resubdivision plat did not show this road, but depicted a roadway running perpendicular to the creek and showed access to the creek by Orange Street. Orange Street is depicted on the 1920 resubdivision plat as a street 50 feet in width leading from Escambia Avenue to Palmetto Creek.

The plaintiffs contended at trial that only the upper portion of the street was open until 1983, when the defendant used a tractor to clear vegetation and open the lower portion of the street to Palmetto Creek. The plaintiffs also contended that the upper portion of the street had been used only by them and their guests prior to 1983, and that the lower portion of the street was never used for access to the creek, and was always heavily covered with vegetation. The defendant contended that he, his family, and the public had always used the street for access to Palmetto Creek.

After an ore tenus hearing, the trial court entered this final order:

"This cause having come on to be heard on the 20th and 21st days of May, 1986, the parties having appeared with their respective attorneys, and the Court having taken testimony ore tenus and the Court having considered the same, it is

"ORDERED, ADJUDGED and DECREED that that certain street designated as Orange Street as shown on re-subdivision of Blocks 30, 31 and 32 of Perdido Beach as per map or plat thereof recorded in the Office of the Judge of Probate of Baldwin County, Alabama in Map Book 1, Page 18, is a properly dedicated public right-of-way.

"It is further ORDERED, ADJUDGED and DECREED that the pier constructed on Orange Street and extending to and over Palmetto Creek is properly permitted and...