Weeks v. Herlong

• Decision Date: 09 June 2006
• Docket Number: 1041506.
• Citation: 951 So.2d 670
• Parties: Ronnie Joe WEEKS and Sally Patterson v. Warren C. HERLONG, Jr.
• Court: Alabama Supreme Court

951 So.2d 670

Ronnie Joe WEEKS and Sally Patterson v. Warren C. HERLONG, Jr.

1041506.

Supreme Court of Alabama.

June 9, 2006.

Rehearing Denied August 18, 2006.

James G. Curenton, Jr., Fairhope, for appellants.

J. Casey Pipes and Christopher T. Conte of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, for appellee.

STUART, Justice.

Ronnie Joe Weeks and Sally Patterson (referred to collectively as "the Weekses") appeal from the trial court's order holding that Warren. C. Herlong, Jr., had a prescriptive easement across the Weekses' property. We affirm.

Facts

The Weekses are siblings. In 1981 or 1982, they inherited property on the Magnolia River from their mother, Blanche Weeks. Jesse Johnson had deeded the property to Blanche Weeks at some point before 1981 or 1982.

Warren C. Herlong, Jr., owns property on the Magnolia River adjacent to and on the east side of the Weekses' property. H.E. Cheatham and Ettie B. Cheatham ("the Cheathams"), Herlong's godparents, had deeded the property to Herlong in 1995. The Cheathams had received title to this property in the 1950s. This case involves Herlong's access to the property.

The following time line is useful in understanding this case. In the early 1900s, a sawmill was located on what is now Herlong's property. Louis Collins owned the property at that time. Louis Collins is related to the Weekses and to Huey Collins, who also owns property in the same area.¹ An old path, known as Old Mill Road, running west to east led to the sawmill on Herlong's property. Old Mill Road is a dirt road. Old Mill Road travels over property belonging to Joe Hamric, another property owner in, the area. Hamric's property is adjacent to and, on the west side of the Weekses' property. As the property stood at the time of trial, Old Mill Road ran west to east from Collins Lane, a paved public road, and over Huey Collins's property, over Joe Hamric's property, over the Weekses' property, and then onto Herlong's property.

In 1965, Hamric created Hamric Lane to provide access to his property from Collins Lane. Hamric Lane, also a dirt road, runs north and south and ends where it forms a "T" intersection with Old Mill Road.

In the late 1970s, a dispute arose between Jesse Johnson, then the owner of the Weekses' property, and Ettie B. Cheatham, then the owner of Herlong's property. That dispute was settled by Johnson's giving an easement to Cheatham; that easement was in writing ("the Johnson-Cheatham easement"). That document provided Cheatham with a perpetual easement and a right-of-way upon and across the following area of Johnson's property (now the Weekses' property):

"A strip of land approximately fifteen (15) feet in width being the existing drive or way running in an Easterly direction from the West line of the property of ... Johnson to the East line thereof. Said existing drive being known as the Old Mill Road and the property of the undersigned ... being described as follows:

"[a description of certain of the Johnson property followed]."

The Johnson-Cheatham easement also provided:

"The grantors hereby further agree, upon being furnished with a more definite description by the grantee and at her expense, to execute another easement appurtenant which will particularly set the land covered thereby."

Cheatham never provided a more definite description to Johnson, so the exact location of the Johnson-Cheatham easement was not established in the chain of title to either the Johnson property or the Cheatham property.

At some point after the Johnson-Cheatham easement was executed, Johnson conveyed his property to Blanche Weeks. In 1981 or 1982, Blanche Weeks died, and her children, including Ronnie Weeks and Sally Patterson, inherited the property.²

In 1993, Joe Hamric sold some of his land to Tynes Stringfellow. Hamric reserved an easement over Hamric Lane to access his property. As stated earlier, Hamric Lane was a dirt road; it was undisputed that Hamric Lane was impassable at times by automobile.

In 1995, Herlong received a deed to the old sawmill property from Ettie Cheatham. In December 1997, Stringfellow granted an easement across his property, which he had obtained from Hamric, to Ronnie Weeks and Sally Patterson and their other siblings; in this easement Stringfellow granted the Weeks family the legal right to use Hamric Lane to access their property.³

In 1999, the Weeks family, at their own expense, "built up" Hamric Lane to make it more usable. They asked Herlong if he was interested in contributing to the costs of the improvements to Hamric Lane, but he declined. After that point, the Weeks family placed a gate across a portion of Old Mill Road where it traverses their property to prevent Herlong from using that portion of it.

In 2000, Herlong sued the Weekses ("the first lawsuit") in the Baldwin County Probate Court to determine the exact location of the Johnson-Cheatham easement across the Weekses' property. The probate court's determination was appealed to the Baldwin Circuit Court. Herlong testified that, while the first lawsuit was pending, he learned he did not have an easement over Stringfellow's property via Hamric Lane and that things were getting "sticky" among the neighbors. Herlong contacted Stringfellow and obtained the same easement from Stringfellow to use Hamric Lane that the Weekses had previously obtained. The easement from Stringfellow to Herlong is dated June 2001. Herlong described that easement as identical to the one the Weeks family had obtained from Stringfellow.

During the first lawsuit, Herlong stated that his sole purpose in that action was to determine the exact location of the Johnson-Cheatham easement. Herlong hired surveyors to determine the location of the easement across the Weekses' property. In its final order, issued June 26, 2003, the circuit court adopted the surveyors' placement and declared the location determined by Herlong's surveyors to be the 15-foot easement Johnson granted to Cheatham in 1980. In its order, the circuit court noted:

"[T]here is a small piece of property owned by the [Weekses] that lies between the south boundary of Mr. Herlong's easement and the south boundary of the [Weekses'] property and that Mr. Herlong at present has no right to cross that small piece of property to get to the easement."

The Weekses did not appeal that order.

This "small piece of property" referred to by the circuit court in its order issued in the first lawsuit was a portion of Hamric Lane immediately before it ended and where it meets Old Mill Road. This portion of Hamric Lane was on the Weekses' property, and it was not included in the 1980 Johnson-Cheatham easement. Therefore, Herlong had an easement granting him the right to use a portion of Hamric Lane and another easement granting him the right to use a portion of the Weekses' property for access to his property. However, the "small piece of property" referred to by the circuit court was necessary to connect the two easements. The parties refer to this small piece of property as "the gap." Without access to the gap, Herlong could not access his property using Hamric Lane.

In the action underlying this appeal, referred to as the "second lawsuit," Herlong attempted to gain the legal right to access the gap. In September 2003, Herlong filed another petition in the Baldwin County Probate Court, seeking to acquire a private right-of-way across the Weekses' property where the gap was located. The probate court issued an order condemning the property constituting the gap and ordered that Herlong pay the Weeks family $2,000 for that property.

The Weekses appealed to the Baldwin Circuit Court for a trial de novo. Herlong cross-appealed. Herlong's complaint, as amended, sought a private condemnation of the gap; a judgment declaring that Herlong had a right of ingress and egress over the property owned by Collins and Hamric and declaring Old Mill Road a public road; and a judgment declaring that Herlong had a prescriptive easement over the gap. By adding the declaratory-judgment counts, Herlong added Collins and Hamric as defendants in the action.⁴

The bench trial lasted one and one-half days; it began on October 25, 2004, and was resumed and completed on May 24, 2005. The trial court heard from Herlong, Huey Collins, Ronnie Weeks, Joe Hamric, Sally Patterson, and several longtime residents of the area. Numerous maps, surveys, and photographs were presented as exhibits.

At the conclusion of the bench trial, the trial judge orally stated his ruling. The trial judge declared that, based on regular and continuous use, Herlong had acquired a prescriptive easement over the gap. The trial judge also stated that Herlong had not established the necessary requirements for a prescriptive easement across Collins's property, "on what is commonly called Old Mill Road, or whatever it is called. Whether he's got a real easement, the document speaks for itself." The Weekses' lawyer and the trial court engaged in extensive dialogue regarding the trial court's ruling.

On May 25, 2005, the trial court entered its final order; that order provided:

"This matter is before the Court for a Final Hearing and after taking testimony and receiving documentary evidence, the Court finds that [Herlong] has established an easement by prescription for ingress and egress across the described lands owned by [the Weekses]. The Court further finds that [Herlong] is not entitled to recover under Count I for private condemnation of the lands."

On July 5, 2005, the Weekses filed their notice of appeal. However, while the appeal was pending, activity continued in the trial court. Herlong filed a motion entitled "Post-Judgment Motion to Enforce Judgment and Close and Distribute Accounts," and on November 7, 2005, the trial court denied in part and granted in part that motion. In its order, the trial court stated:

"[Herlong's] Motion to Enforce Judgment is GRANTED in part and DENIED in part. [Herlong...