Wehby v. Turpin

• Decision Date: 20 February 1998
• Parties: Norman A. WEHBY and Nancy H. Wehby v. Tommy E. TURPIN, et al. 1960833.
• Court: Alabama Supreme Court

Page 1243

710 So.2d 1243

Norman A. WEHBY and Nancy H. Wehby v. Tommy E. TURPIN, et al.

1960833.

Supreme Court of Alabama.

Feb. 20, 1998.

Charles Cleveland of Cleveland & Cleveland, P.C., Birmingham, for appellants.

C. Paul Cavender and Jolee Hancock Bollinger of Lange, Simpson, Robinson & Somerville, Burmingham, for Tommy E. Turpin and Marla Turpin.

Philip G. Piggott of Spain & Gillon, Birmingham, for Landscape Services, Inc., and O.G. Touchstone III.

On Application for Rehearing

HOUSTON, Justice.

The opinion of December 19, 1997, is withdrawn and the following is substituted therefor.

This case centers around a water-rights dispute involving a reconstructed man-made lake located near Chelsea, Alabama. The plaintiffs, Norman A. Wehby and Nancy H. Wehby, own property in a residential area (hereinafter "Chelsea Place"); that property includes a portion of the bed and shoreline of the lake. Two streams flow into the lake, including Yellowleaf Creek, which the Wehbys allege is capable of being traversed by boats and canoes during some parts of the year. In August 1979, Clarence W. Hatcher and his wife sold a portion of their Chelsea Place property to the Huffman Assembly of God ("the Church"), including most of the land on which the lake now lies. When the Church purchased the property, the lake bed was dry. The Church repaired the dam and reconstructed the lake. The Hatchers gave the Church permission to install a part of the dam and spillway on their property. The water level of the lake later rose, causing part of the Hatchers' property to flood. In exchange for the use of their property, the Church granted the Hatchers a license to use the lake for recreational purposes. It is undisputed that the Hatchers had a license to use the lake for recreational purposes and that every family owning land surrounding the lake also used the lake for such purposes. However, no documents exist indicating that the Church granted the Hatchers an easement over the lake.

In 1985, the Wehbys purchased from the Hatchers the partially flooded property next to the lake. The property description in the warranty deed did not refer to the lake, and the deed did not mention any water rights. The title insurance policy the Wehbys obtained describes an easement granted to the Church for a road. However, the policy mentions no easement or conveyance regarding the lake, and it specifically states that "Riparian Rights are neither guaranteed nor insured." The Wehbys claim that when they purchased the property they relied on statements made by Mr. Hatcher. Apparently, Mr. Hatcher claimed that the right to use the lake ran with the property. With the exception of the Wehbys' testimony, no evidence exists to support their claim.

In June 1991, SouthTrust Bank acquired, through foreclosure, the property of the Cathedral of the Cross (formerly the Huffman Assembly of God); that property included the Chelsea Place property, including the lake. Before the foreclosure, United States Bankruptcy Judge Clifford Fulford had ruled that Hatcher had "no right, title, interest in or lien upon the Chelsea Place property or any lakes, ponds or streams contained thereon." To facilitate the sale, Judge Fulford apparently ordered Hatcher to execute a quitclaim deed conveying to SouthTrust Bank all interest that he claimed to have in the Chelsea Place property.

In February 1992, SouthTrust Bank sold and deeded its Chelsea Place property, including the lake, to Landscape Services. Landscape Services later transferred a portion of that lakefront property to Tommy E. Turpin and Marla Turpin. Michael T. Atchison, a real estate attorney practicing in Shelby County, said that before 1993 he discussed with the Wehbys their right to use the lake. Atchison also stated that he had informed the Wehbys before 1993 that they had no rights in that part of the lake that extends past the surface waters covering their property. In addition, Atchison said that he informed the Wehbys that use of the lake or lake bed past their property boundary would be either adverse to the true owners or by permission of those owners. Mr. Wehby claims, however, that he never met, or discussed anything with, Atchison before 1993.

The Wehbys claim that in April or May 1995, they contracted to sell their property to Dale New and Kate New for $130,000. Presumably, the News and the Wehbys signed a contract in each other's presence. Mr. Wehby claims that a couple of days later he went to Atchison's office to sign some papers regarding the sale. Atchison denies ever having prepared, having seen, or having been in possession of the alleged contract, and neither the Wehbys nor the News could produce a copy of it. Because of the confusion over the lake rights, however, the News expressed doubts as to whether they would buy the Wehbys' Chelsea Place property. Mr. New and Mr. Wehby confronted Landscape Services' vice-president, O.G. Touchstone, regarding the lake rights. Touchstone denied that the Wehbys had any right to use the lake; he said, however, that he would allow the News to use the lake should they purchase the Wehbys' property. As a result, according to the Wehbys, the News declined to purchase the property and the Wehbys had to forfeit earnest money that had been paid on the contract.

The Wehbys sued the Turpins, Touchstone, and Landscape Services. Arguing that they have riparian or littoral rights in the lake, the Wehbys sought a judgment declaring that they have the right to use the entire lake for recreational purposes; alternatively, they claimed that the lake is "public," within the meaning of Ala.Code 1975, § 9-11-80(a), or that they have an easement, either express or implied, to use the lake. The Wehbys also claimed that the defendants had intentionally interfered with a contract for the sale of their Chelsea Place property. In addition, the Wehbys sought a declaration that they had the right to remove that portion of the dam and spillway located on their property. The defendants, on the other hand, contended that the lake is private; that the Wehbys possess no ownership interest in the majority of the lake; that the Wehbys have no littoral or riparian rights in the area of the lake not owned by them; and that the Wehbys have neither an express easement, nor an implied easement, to use the lake for any purpose. The trial court entered a summary judgment for all of the defendants. ¹

A summary judgment is proper and must be affirmed on appeal when no genuine issues of material fact exist and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; Hughes v. Hertz Corp., 670 So.2d 882 (Ala.1995). Once the moving party makes a prima facie showing that he is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Id. We review the record in the light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Hurst v. Alabama Power Co., 675 So.2d 397 (Ala.1996).

The threshold issue in this case concerns who has control over the surface waters of a private, nonnavigable lake, when the lake bed is owned by two or more adjoining landowners. Primarily, the Wehbys argue that because their land is partially flooded and is contiguous to the lake, they have littoral or riparian rights ² in the entire surface waters above the lake bed. This issue is one of first impression in Alabama. Therefore, we must examine the law of other jurisdictions to gain a better understanding of the origins and evolution of littoral or riparian rights.

Most jurisdictions appear to adhere to the so-called common law rule. Under this rule, the owners of the fee in land underlying the surface waters of a man-made, nonnavigable lake are entitled to the exclusive control of that portion of the lake lying over the land as to which they own the fee. Ours v. Grace Property, Inc., 186 W.Va. 296, 300, 412 S.E.2d 490, 494 (1991). "Consequently, the owner of a portion of a lake bed has the right to exclude others, including any other owners of the lake bed, from using his property." Grace Property, supra, 186 W.Va. at 299, 412 S.E.2d at 493; see Anderson v. Bell, 433 So.2d 1202 (Fla.1983) (distinguishing that case from the court's earlier decision in Duval v. Thomas, 114 So.2d 791 (Fla.1959), discussed infra, in which the Florida Supreme Court had adopted the civil law rule); Black v. Williams, 417 So.2d 911 (Miss.1982) (addressing only the rights of owners of land beneath "artificial" or "man-made" lakes); Crenshaw v. Graybeal, 597 So.2d 650 (Miss.1992); Medlock v. Galbreath, 208 Ark. 681, 187 S.W.2d 545 (1945); Lanier v. Ocean Pond Fishing Club, Inc., 253 Ga. 549, 322 S.E.2d 494 (1984); Sanders v. De Rose, 207 Ind. 90, 191 N.E. 331 (1934); Baker v. Normanoch Ass'n, Inc., 25 N.J. 407, 136 A.2d 645 (1957); Commonwealth Water Co. v. Brunner, 175 A.D. 153, 161 N.Y.S. 794 (1916); Smoulter v. Boyd, 209 Pa. 146, 58 A. 144 (1904); Taylor Fishing Club v. Hammett, 88 S.W.2d 127 (Tex.Civ.App.1935); Wickouski v. Swift, 203 Va. 467, 124 S.E.2d 892 (1962).

An application of the majority rule can be found in Anderson v. Bell, supra, which was factually similar to the present case. In that case, the plaintiff, Anderson, purchased a tract of land traversed by a nonnavigable creek. Anderson later excavated and constructed an earthen dam; the construction created a substantial lake. As a result of the lake formation, several surrounding parcels were flooded, including land owned by Lewis and Watson. A dispute arose over the flooding. As part of a settlement agreement, Lewis and Watson conveyed a flowage easement to Anderson, expressly reserving title and beneficial use of their land. Lewis and Watson later sold their land to the defendant, Bell. Anderson subsequently sued to enjoin Bell from using the surface waters owned by Anderson, but not the waters covering Bell's property....