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Hubbard v. Cason

Alabama Court of Civil Appeals

February 2, 2018

James L. Hubbard
v.
James E. Cason, Austin Cason, Emitte P. Caldwell, and William Lee Morrow

         Appeal from Talladega Circuit Court (CV-14-900152)

          MOORE, JUDGE.

         James L. Hubbard appeals from a judgment of the Talladega Circuit Court ("the trial court") concluding, among other things, that Hubbard is the owner of an easement in Talladega County and that James E. Cason ("James") is entitled to a joint easement for ingress and egress over the west 20 feet of that easement, pursuant to adverse possession. We affirm the trial court's judgment.

         Procedural History

         On April 23, 2014, Hubbard filed a complaint against James and Austin Cason ("Austin"), seeking a judgment declaring the respective rights and obligations of the parties with regard to a 40-foot-wide and 982-foot-long strip of property ("the roadway") located in Talladega County that has been used as a road to access property belonging to Hubbard and James, among others. Hubbard asserted that he owned the roadway by virtue of a deed or, alternatively, by adverse possession; he asserted a claim of trespass against James and Austin and sought a preliminary injunction prohibiting them from using the roadway. James and Austin filed answers to the complaint, denying the allegations asserted by Hubbard.

         On November 10, 2014, Hubbard filed an amended complaint, adding as a defendant Branch Banking and Trust Company ("BB&T"), which, according to the amended complaint, held a mortgage on property belonging to James; BB&T was later dismissed as a defendant after presenting evidence indicating that the mortgage it held on James's property had been satisfied. On May 5, 2015, Hubbard filed a motion for a summary judgment, arguing that he owned the roadway in fee simple. On June 17, 2015, James and Austin filed a response to Hubbard's summary-judgment motion in which they argued, among other things, that Hubbard had merely been granted a right-of-way in the roadway. James and Austin argued that James owns the roadway, subject to Hubbard's easement, and they sought an order from the trial court limiting other entities from using the roadway. Hubbard filed a reply to the response. On June 22, 2015, the trial court entered an order denying Hubbard's summary-judgment motion.

         On July 31, 2015, Hubbard filed a second amended complaint, adding as defendants Emitte P. Caldwell and William Lee Morrow "(William"). Hubbard asked the trial court, in the event it determined that he was not the sole owner of the roadway in fee simple, to order that the roadway be sold and the proceeds divided among him and the other joint owners of the roadway. On January 4, 2016, Hubbard filed an application, with a supporting affidavit, for an entry of default against Caldwell and William. The trial court entered an order noting that Caldwell and William were subject to having default judgments entered against them but it reserved entering any such judgments until the presentation of Hubbard's case at trial. Following the entry of that order, Caldwell filed with the trial court a document indicating that he "denie[d] th[at] order."

         Following a trial on August 29, 2016, the trial court entered a final judgment on February 15, 2017, in which it, among other things, set aside the entry of default against Caldwell; entered a default judgment in favor of Hubbard against William; and concluded, among other things, that Hubbard has superior paper title with regard to an easement in the roadway to the exclusion of the paper title asserted by James and that William owns the property on which the roadway is situated. The trial court enjoined James and Austin from blocking, impeding, or obstructing the easement or any part or portion thereof from Hubbard's use as set out in the deed conveying the easement to Hubbard; it also granted an easement in favor of James on the west 20 feet of the roadway, based on a finding of adverse possession, subject to the rights of William. The trial court denied all remaining claims not specifically addressed in the judgment. Hubbard timely filed his notice of appeal to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).[1]

         Facts

         Steve Upchurch, a real-estate attorney, testified that he had performed a title examination on the roadway and that the first deed he had examined was a May 20, 1970, deed from M.E. Caldwell and Ruth Allen Caldwell to Mary C. Morrow and her husband, Edison L. Morrow ("the Morrows"); according to Upchurch, that deed had transferred the roadway and the property surrounding the roadway to the Morrows.

         On March 24, 1986, the Morrows executed a deed in favor of David W. Challender and Troy Ann Challender; that deed stated, in pertinent part:

"[The Morrows] ... grant, bargain, sell and convey unto ... David W. Challender and wife, Troy Ann Challender, ... the following described real estate situated in Talladega County, Alabama, to-wit:
"A RIGHT OF WAY AND EASEMENT for road construction, maintenance, ingress, egress, utility construction, public dedication and every other right necessary to ensure the enjoyment and use of the property described as: [a description of a strip of property approximately 40 feet wide and 982 feet long]. ... TO HAVE AND TO HOLD to [David W. Challender and Troy Ann Challender], his, her, their heirs and assigns forever."

         According to Hubbard, on August 11, 1986, the Challenders conveyed to Hubbard 40 acres of property that lies north of the roadway, in addition to the roadway itself. He stated that he had been told that he was purchasing the roadway in fee simple, rather than merely an easement in the roadway. The deed from the Challenders to Hubbard recites the same language regarding the roadway that appeared in the deed from the Morrows to the Challenders.[2]

         Caldwell testified that Mary C. Morrow was his mother and that Edison L. Morrow was his stepfather, that Edison had predeceased Mary, and that, upon Edison's death, the property in Edison's name had been transferred to Mary. On April 30, 1998, Mary transferred property to Caldwell that, according to Upchurch, was bounded on the east by the west boundary of the roadway. Upchurch testified that, on that same date, Mary had transferred to her other son, William, by deed, 26 acres of property, which included the roadway, and that, as a result of that deed, William owned the roadway in fee simple.

         On June 22, 1998, Caldwell executed a deed in favor of James, which deed, according to Upchurch, purported to convey 20 feet of the roadway to James. Caldwell testified that, when he sold the property to James, there had been an old wagon road bed that went across the property and that it had been his understanding that he had sold half of the road bed to James and that the other half had belonged to his brother, but that the roadway had been a right-of-way for the Challenders to use.

         Hubbard testified that he had sent a letter to James on December 1, 1998, because James had blocked the roadway with a travel trailer, a pile of rubbish, and other equipment that had kept him from accessing his property. He testified that David Challender had built up the roadway for traveling across it with vehicles and that Hubbard had finished building it up and had used it for over 30 years. Hubbard testified that he had known since December 1, 1998, when he had written the letter to James, that James and Austin had been using the roadway to access James's property. He testified that he thought James and Austin had done some upkeep on the roadway.

         Austin testified that James is his brother and that he lives in a mobile home on the property owned by James. Austin testified that James had moved to the property in the 1990s and that he had moved onto the property in 2000. Austin stated that he had helped James build and repair the roadway that goes up to James's house. He stated that, since he had moved there in 2000, he had done repair work, including placing gravel, on the roadway. Austin testified that, at some point, James had been injured and confined to a wheelchair, but, he said, before that, James had also placed gravel on the roadway. According to Austin, he had also cut grass along the roadway and had kept up the roadway from the entrance of the roadway up to his mobile home. He stated that he had assisted in building a ramp from James's house onto the roadway, that log trucks had come in to build the ramp, and that those log trucks had blocked the roadway. Austin testified that he had had a pontoon boat parked on the side of the roadway after 2000 but that he had not placed anything across the roadway. He stated that he and James had parked vehicles on the side of the roadway but not across the roadway. Austin testified that there was a period in 2014 when the roadway had been blocked to keep loggers out.

         Analysis

         Hubbard argues on appeal that the trial court erred by concluding that James had proved ownership of an easement in the roadway by virtue of adverse possession, by denying his motion for a summary judgment, and by concluding that Hubbard does not own the roadway in fee simple, but has only an easement therein. We address the issues raised on appeal in a different order than presented by Hubbard in his brief on appeal.

         To the extent that Hubbard argues that the trial court erred by denying his motion for a summary judgment, we note that "[t]his court does not review the denial of a summary judgment after a trial on the merits has been held." Franklin v. Woodmere at the Lake, 89 So.3d 144, 150 (Ala. Civ. App. 2011). Accordingly, we decline to further address Hubbard's argument on that point.

         Hubbard next argues that the trial court erred by concluding that he owned an easement in the roadway, asserting instead that he owns the roadway in fee simple. Hubbard cites Slaten v. Loyd, 282 Ala. 485, 487-88, 213 So.2d 219, 220-21 (1968), for the proposition that "the granting clause in a deed determines the interest conveyed, and unless there is repugnancy, obscurity or ambiguity in that clause, it prevails over introductory statements or recitals in conflict therewith, and over the habendum, too, if that clause is contradictory or repugnant to it." Hubbard also cites Rowell v. Gulf, Mobile & Ohio Railroad, 248 Ala. 463, 28 So.2d 209 (1946), and Moss v. Williams, 822 So.2d 392, 398-99 (Ala. 2001), in support of his assertion that the language in the line of deeds transferring the roadway does not operate to limit the estate conveyed from title in fee simple to an easement. We disagree.

         In Moss, our supreme court stated, in pertinent part:

"'It is frequently stated that:
"'"One of the rules in the construction of deeds is that if there be two clauses which are utterly inconsistent with each other, and which cannot be reconciled or made to stand together, the last shall give way to the first, the maxim being 'the first clause in a deed, and the last in a will, shall prevail.'"'
"Wilkins v. Ferguson, 294 Ala. 25, 29, 310 So.2d 879, 883 (1975) (Jones, J., concurring specially) (quoting Henry v. White, 257 Ala. 549, 60 So.2d 149 (1952)) (emphasis added). More specifically, 'the granting clause in a deed determines the interest conveyed, and unless there is repugnancy, obscurity or ambiguity in that clause, it prevails over introductory statements or recitals in conflict therewith, and over the habendum, too, if that clause is contradictory or repugnant to it.' Slaten v. Loyd, 282 Ala. 485, 487-88, 213 So.2d 219, 220-21 (1968) (emphasis added). Where the granting clause, however, designates no particular estate, any intent to overcome the statutory presumption that the conveyance is of a fee-simple estate 'must of necessity be found in lucid, unambiguous ...

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