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Robinson v. Harrigan Timberlands Limited Partnership

Supreme Court of Alabama

November 30, 2018

Robert Clyde Robinson
Harrigan Timberlands Limited Partnership, Scotch Land Management, LLC, Fulton Logging Company, LLC, Black Sheep Woodlands, LLC, and Todd Overstreet d/b/a Overstreet Timber Company

          Appeal from Clarke Circuit Court (CV-17-900039)


         Robert Clyde Robinson appeals from the Clarke Circuit Court's dismissal of his action against Harrigan Timberlands Limited Partnership ("Harrigan"), Scotch Land Management, LLC ("Scotch"), Fulton Logging Company, LLC ("Fulton"), Black Sheep Woodlands, LLC ("Black Sheep"), and Todd Overstreet d/b/a Overstreet Timber Company ("Overstreet") (hereinafter collectively referred to as "the Harrigan defendants") for the alleged wrongful cutting of timber. We reverse the judgment of the trial court and remand the case.

         I. Facts

         On March 15, 2017, Robinson filed an action in the Clarke Circuit Court alleging that, from June through September 2016, "approximately 20-30 acres of timber ... was wrongfully cut and removed" from his property, that the land "was once a forest of virgin timber," that he had "lived on [the land] all his life, and [that], before the [Harrigan d]efendants' egregious actions, he explored, hunted, traversed, and otherwise enjoyed all of this property in its natural, pristine state." Robinson alleged that Harrigan was a coterminous property owner who entered into a contract with Scotch to cut and remove timber from Harrigan's property but that, in doing so, Harrigan wrongfully authorized the harvesting of timber from Robinson's property. Robinson further alleged that Scotch subcontracted with Fulton "to carry out a portion of the actual cutting, removal and sale of timber ... from the northern portion of his property" and that Scotch subcontracted with Black Sheep "to carry out a portion of the actual cutting, removal and sale of timber ... from the southern section of his property." Robinson further alleged that Black Sheep subcontracted with Overstreet, who cut, removed, and sold timber from the southern portion of Robinson's property. Robinson asserted several claims against the Harrigan defendants, including trespass, a statutory claim alleging the wrongful cutting of timber, a statutory claim alleging dealing in wrongfully converted timber, a common-law claim to recover damages for the wrongfully cut timber, and a claim alleging negligence/wantonness.

         Robinson's complaint referenced two deeds he stated "particularly described" the property in question and that were "attached ... and incorporated ... by reference" into the complaint as Exhibits "A" and "B." However, Robinson neglected to attach the deeds to his complaint when it was filed. Counsel for Harrigan, Scotch, and Fulton notified Robinson of the oversight, and Robinson forwarded copies of the two deeds to the Harrigan defendants. The first deed, dated August 20, 2001, conveyed two parcels of property from Raymond Brent Robinson and Mary Ann Robinson to Robinson. The descriptions of both parcels state that the eastern boundary of the parcels is "West of Bassetts Creek in Section 8." The second deed, dated January 14, 2012, also conveyed two parcels of property to Robinson. The grantor under the 2012 deed was Mary Dell Robinson Prater. The description of the second parcel in the 2012 deed describes that property as follows: "All of Northwest Quarter of Northeast Quarter West of Bassetts Creek in Section 8, Township 8 North, Range 4 East, containing 39 acres" (hereinafter referred to as "Parcel Two"). We note that a quarter-quarter section contains approximately 40 acres of land.

         On April 19, 2017, Overstreet filed an answer to the complaint in which he denied all allegations and stated as an affirmative defense that "[t]his Defend[ant] did not wrongfully cut any of [Robinson's] alleged timber."

         On April 25, 2017, Harrigan, Scotch, and Fulton filed a motion to dismiss Robinson's complaint. In the motion, they noted that the deeds conveyed parcels of property to Robinson and that

"[t]he descriptions of these parcels state that the property deeded to [Robinson] is '[w]est of Bassetts Creek.' ... However, none of the timber which was cut or removed was on the west side of Bassetts Creek. Rather, all of the cutting and removal of timber occurred on the east side of Bassetts Creek.... Simply put, according to the deeds [Robinson] attached as an exhibit to his Complaint, [Robinson] admittedly does not own the property where the trees were cut."

         On the basis of the contention that Harrigan, Scotch, and Fulton did not cut any timber located on Robinson's property, those defendants requested a complete dismissal of the claims against them. They attached the two deeds as exhibits to their motion to dismiss. Harrigan, Scotch, and Fulton also attached photographs of trees the motion stated were along the boundary line of Robinson's and Harrigan's properties. One of the pictured trees had yellow paint on it, and two of the pictured trees had signs that stated: "Property Line -- No Hunting or Trespassing -- Scotch Timber Company."[1]

         On May 1, 2017, Black Sheep filed its own motion to dismiss the complaint. In its motion, Black Sheep contended that

"[Robinson's] Complaint fails to identify specifically what portion of the alleged land owned by Mr. Robinson was cut. It is impossible for Black Sheep to properly respond to the Complaint that gives general references to an alleged area of property that was destroyed without giving specific parameters of the alleged property connected to the deeds used to support the claims being made by [Robinson]."

         Black Sheep also contended that it had committed no wrongful act as to Robinson's property and that, because the complaint alleged that it subcontracted with Overstreet and that Overstreet was the one that actually cut timber, Black Sheep could not be liable for trespass.

         On May 3, 2017, Robinson filed a response in opposition to the motions to dismiss his complaint.[2] In that response, Robinson argued:

"While the [Harrigan d]efendants rightly point out that [Robinson's] deeds on their faces state [that his property is] west of Bassett's [sic] Creek[, Robinson] argues that pursuant to federal and state law [the] Bassett's [sic] Creek bed prior to avulsion is the true and correct boundary line between [Robinson's] land and [Harrigan's] land. In light of the possibility that [Robinson] can support his claim that due to an avulsive event the boundary line argued by the [Harrigan d]efendants is not the true boundary line, it necessarily follows that there must be some doubt about [Robinson's] inability to establish a set of facts that would support a claim entitling him to relief."

         In other words, Robinson contended that the course of Bassetts Creek had changed due to an avulsion, that the creek bed through which water formerly flowed constituted the original Bassetts Creek referred to in his deed, and that that creek bed was, in fact, the boundary line between the Robinson and Harrigan properties, rather than the currently designated Bassetts Creek.

         On May 8, 2017, the trial court entered an order setting the motions to dismiss for a hearing to be held on June 22, 2017. On May 22, 2017, Harrigan, Scotch, and Fulton filed their "First Interrogatories and Request for Production from [Robinson]." Attached to that filing were more photographs of trees that had yellow paint on them.

         On June 20, 2017, Harrigan, Scotch, and Fulton filed a reply to Robinson's response to the motions to dismiss the complaint. In that reply, they repeated the contention that they had not cut any timber west of Bassetts Creek. Harrigan, Scotch, and Fulton added that "[t]he new allegation of avulsion is completely and totally absent in the Complaint. Inserting the concept into a subsequent motion does not retroactively change the fact that the Complaint does not state any claim under which [Robinson] could be entitled to relief."

         On the same date, Harrigan, Scotch, and Fulton filed "supplemental evidence" in support of their motion to dismiss; that supplement consisted of an affidavit from former Scotch employee Lloyd Gilchrist and a land survey of Robinson's property by McVay Surveying that contained a map showing the boundary line as the currently designated Bassetts Creek. In his affidavit, Gilchrist stated that he had been an employee of Scotch from 1980 to 2012 and that he had "patrolled that area at least two to three times per year from 1980 until 2012." Gilchrist affirmed that the photographs of trees attached to the "First Interrogatories" filed by Harrigan, Scotch, and Fulton depicted trees along the boundary line of Harrigan's property and that the trees had been marked with yellow paint since at least 2003 to designate Harrigan's boundary line.

         On June 22, 2017, the trial court heard the parties' arguments concerning the motions to dismiss filed by the Harrigan defendants. Robinson contended that, "[i]n Alabama, the boundary lines are not moved by avulsion" and that, therefore, the fact that the course of Bassetts Creek had changed over time did not alter the boundary line of Robinson's property. Robinson noted that if the boundary line corresponding to the old creek bed for Bassetts Creek is accepted, the acreage for Parcel Two as described in the 2012 deed is 39 acres but that, if the boundary line is the currently designated Bassetts Creek, then Parcel Two would be only approximately 24 acres. Robinson also stated that he had evidence indicating that an avulsion had occurred around 1900 based on a newspaper article from that period and that he could also present, if necessary, previous deeds that showed that the acreage for the parcels of property owned by Robinson had remained the same before and after the alleged avulsion. Neither the newspaper article nor the previous deeds were introduced into evidence. Robinson did introduce into evidence a map of Robinson's property from the Clarke County Tax Assessor's office. "Bassetts Creek" as depicted on the map appears to coincide with the position Robinson claims as the boundary line for his property. Robinson also entered into evidence an aerial photograph of his property and a large map of a land survey performed by Fleming Engineering regarding the subject property on March 22, 2017. The Fleming survey map reflects that Bassetts Creek forks near the eastern boundary of Parcel Two, the western fork meanders through the middle of Parcel Two, and a smaller eastern fork meanders near the eastern quarter-quarter section line. The Fleming survey marked the old creek bed, i.e., the eastern fork, of Bassetts Creek as the boundary line for Robinson's property.

         In the same hearing, the Harrigan defendants repeated their contention that they cut only timber east of Bassetts Creek and that Robinson's theory that an avulsion had occurred was never pleaded in his complaint. In support of their contention that they cut only timber east of Bassetts Creek, the Harrigan defendants cited the photographs of trees that had been attached to their previous filings. For support of their argument that the current Bassetts Creek is the true boundary line between the properties, the Harrigan defendants pointed to the affidavit from Gilchrist and the survey they filed two days before the hearing. They discounted the tax assessor's map because "this map is used for tax assessment purposes only, not for any conveyance of property."

         On August 21, 2017, the trial court sent a note to the parties in which it stated: "After reviewing my notes, I believe that viewing this property would be very helpful to me in arriving at a fair decision." The parties settled on the date of September 29, 2017, for a site visit by the trial court. On September 29, 2017, the trial judge, counsel for the parties, Robinson, Jeff Lucas, a land surveyor whose services Robinson had secured, and representatives for the Harrigan defendants visited the property.

         On October 4, 2017, Robinson filed a "Motion to Supplement Evidence," which contained an affidavit from Lucas and a copy of the Fleming survey map. In his affidavit, Lucas stated that, as part of his review of the Fleming survey, he had made his own site visit to the property where he observed the boundary lines of the ...

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