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09/02/94 WATER WORKS AND SEWER BOARD CITY

September 2, 1994

THE WATER WORKS AND SEWER BOARD OF THE CITY OF BIRMINGHAM
v.
CHARLES N. WINGETT



Appeal from Shelby Circuit Court. (CV-90-821.01). D. Al Crowson, TRIAL JUDGE.

Released for Publication December 7, 1994. Rehearing Denied December 16, 1994.

Ingram, Hornsby, C.j., and Shores, Steagall, and Kennedy, JJ., concur.

The opinion of the court was delivered by: Ingram

INGRAM, JUSTICE.

The Water Works and Sewer Board of the City of Birmingham ("Board") petitioned for a rule nisi, contending that Charles Wingett had failed to comply with a previous order of the trial court and arguing that he should be adJudged in contempt of court. The trial court held that Wingett was not in violation of the court's order and denied the Board's petition for a rule nisi. The Board appeals.

In 1990, Wingett filed a complaint for a declaratory judgment to determine if the construction of his backyard swimming pool and fence interfered with the Board's sewer line easement located at the rear of Wingett's property. In October 1991, the trial court issued a final order, finding that the Board had a nonexclusive easement over the back portion of Wingett's property that included the free right of ingress to and egress from Wingett's property. Basically, the easement provided that no construction could be done within the easement that would prevent ready access to, or that would interfere with, the Board's pipelines. The court's order, in part, is as follows:

"E. That there exists an eight-inch (8") PVC sewer line anywhere from 7 feet to 12 feet deep underneath [Wingett's] property and [the Board's] easement which extends entirely across said easement.

"....

"G. That [Wingett] has constructed a swimming pool which protrudes across a very small portion of [the Board's] easement.

"H. That [Wingett] has also constructed several brick columns over [the Board's] easement with the intention of later connecting a removable wooden portion thereto for a fence.

"....

"P. That [Wingett's] brick columns unreasonably interfere with the [Board's] accessibility to do its repair and/or maintenance work at the current time.

"Q. That the construction of [Wingett's] swimming pool does not interfere and would not interfere with [the Board's] use of its easement, nor is it anticipated that it would do so in the future."

The trial court ordered Wingett to remove the brick columns that were within the Board's ...


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