Opinion
SC-2023-0198 SC-2023-0200
09-15-2023
Louie Martin SMITH, Emily Diane Smith, and Joshua Martin Smith v. Katherine Elizabeth STOWE Louie Martin Smith, Emily Diane Smith, and Joshua Martin Smith v. Katherine Elizabeth Stowe and Norfolk Southern Railway Company
Fulton S. Hamilton, Owens Cross Roads, for appellants. F. Taylor Rouse of Cloud, Ryan & Rouse, LLC, Huntsville, for appellee Katherine Elizabeth Stowe. Diane B. Maughan of Phelps Dunbar LLP, Birmingham, for appellee Norfolk Southern Railway Company.
Fulton S. Hamilton, Owens Cross Roads, for appellants.
F. Taylor Rouse of Cloud, Ryan & Rouse, LLC, Huntsville, for appellee Katherine Elizabeth Stowe.
Diane B. Maughan of Phelps Dunbar LLP, Birmingham, for appellee Norfolk Southern Railway Company.
SELLERS, Justice.
In appeal no. SC-2023-0198, Louie Martin Smith, Emily Diane Smith, and Joshua Martin Smith ("the Smiths") appeal from a judgment of the Jackson Circuit Court declaring that Katherine Elizabeth Stowe has a prescriptive easement over the Smiths’ property to allow her to access her property for agricultural and recreational purposes. In appeal no. SC-2023-0200, the Smiths appeal from a judgment granting Stowe a right-of-way over both their property and a railroad crossing owned by Norfolk Southern Railway Company ("Norfolk"). We affirm.
I. Facts and Procedural History
In August 2013, Stowe purchased 15.8 acres of land in Jackson County for the purpose of building a house. The property was landlocked, providing Stowe with no legal access to a public road. The Stowe property is bounded on the west by property owned by Stowe’s parents, and bounded on the east by property owned by Ricky Hornbuckle; the Hornbuckle property is bounded on the east by property owned by the Smiths. All four properties are bounded on the south by an approximately 80- foot-wide tract of land owned by Norfolk on which its railroad tracks lie. U.S. Highway 72, which is owned by the State, is located south of the Norfolk railroad tracks and runs parallel to the tracks. U.S. Highway 72 is the closest public highway to the four properties. The Smith property has direct access to U.S. Highway 72 by means of a railroad crossing owned by Norfolk referred to as the "middle crossing." (The appendix to this opinion depicts where the various properties, the railroad tracks, the highway, and the railroad crossing are situated.) Norfolk granted the Smiths a license to use the middle crossing. Located on the southwestern portion of the Smith property is an old "farm road." For over 20 years, Stowe and her predecessors in title have used that road to access their property for agricultural and recreational purposes. Before purchasing her property, Stowe asked the Smiths if she could use the farm road to reach the Norfolk middle crossing to access U.S. Highway 72. The Smiths agreed to that request. However, after the Smiths that learned Stowe intended to build a house on her property, they refused to sign a written easement agreement. Stowe commenced an action against the Smiths and Norfolk in the Jackson Probate Court, pursuant to § 18-3-1 et seq., Ala. Code 1975, alleging that her property was landlocked and seeking the condemnation of a right-of-way over the Smiths’ farm road and Norfolk’s middle crossing so that she could access U.S. Highway 72. Stowe also commenced a separate action against the Smiths in the Jackson Circuit Court, seeking a judgment declaring that she had acquired an easement by prescription over their farm road. The probate court entered an order granting Stowe a nonexclusive right-of-way over the farm road. The Smiths appealed that order to the circuit court for a trial de novo. For the purpose of conducting a single bench trial, the circuit court consolidated the appeal from the probate court and the circuit-court case.
Stowe acquired a deeded easement over the southern portion of the Hornbuckle property.
At trial, the evidence was undisputed that the Stowe property was landlocked. The Smiths maintained that Stowe had not established the existence of a prescriptive easement over their farm road but that, if she had, the scope of the easement was limited to allowing her to access her property only for agricultural and recreational purposes. The Smiths also took the position that there were other reasonably adequate means for Stowe to access a public highway other than by condemning a right-of-way over their property — for example, they presented evidence indicating that Stowe could use an existing railroad crossing located in Madison County referred to as the "western crossing" or that Stowe could seek to condemn a right- of-way over Norfolk’s railroad tracks directly from the Stowe property to U.S. Highway 72. Norfolk opposed the building of a new crossing on the basis that a new crossing it would, among other things, create potential safety issues. Norfolk took the position that Stowe could use any of its existing crossings but that the middle crossing near the Smith property was the safest and preferred crossing. After considering the testimony of witnesses, documentary evidence, and personally inspecting the properties at issue, the circuitcourt judge entered a judgment (1) declaring that Stowe had established the existence of an easement by prescription over the Smiths’ farm road until it reached the Hornbuckle property and that the easement was limited in scope to allowing her access to her property only for agricultural and recreational purposes; (2) granting Stowe a nonexclusive right-of-way over the Smiths’ farm road and ordering her to pay them $2,643 for the right-of-way; (3) declaring that Stowe had established a prescriptive easement over the Norfolk middle crossing; and (4) granting Stowe a nonexclusive right-of-way over the Norfolk middle crossing and ordering her to pay Norfolk $2,000 for the right-of-way. These consolidated appeals filed by the Smiths followed. We note that Norfolk did not appeal from the circuit court’s judgment declaring the existence of a prescriptive easement over the middle crossing and granting a right-of-way over the crossing. Rather, Norfolk has favored this Court with a brief in support of that judgment.
II. Standard of Review
[1, 2] The circuit court conducted a bench trial at which oral testimony was given; thus, the ore tenus standard of review applies:
"The ore tenus rule affords a presumption of correctness to a trial court’s findings of fact based on ore tenus evidence, and the judgment based on those findings will not be disturbed unless those findings are clearly erroneous and against the great weight of the evidence. Reed v. Board of Trs. for Alabama State Univ., 778 So. 2d 791, 795 (Ala. 2000). It is grounded upon the principle that when a trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of the witnesses. Hall v. Mazzone, 486 So. 2d 408, 410 (Ala. 1986). The ore tenus rule does not cloak a trial court’s conclusions of law or the application of the law to the facts with a presumption of correctness. Kennedy v. Boles Invs., Inc., 53 So. 3d 60 (Ala. 2010)."
Allsopp v. Bolding, 86 So. 3d 952, 958 (Ala. 2011). "In addition, the ore tenus presumption is further strengthened in a case involving a dispute over real property, where the trial judge views the land in question." Hereford v. Gingo-Morgan Park, 551 So. 2d 918, 920 (Ala. 1989).
III. Discussion
A. Appeal No. SC-2023-0198 — Prescriptive Easement
[3–6] The Smiths argue that the circuit court erred in declaring that Stowe had established the existence of an easement by prescription over their farm road because, they say, Stowe’s use of the farm road had been permissive, as opposed to adverse or under a claim of right.
"To establish an easement by prescription, the claimant must use the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner."
Bull v. Salsman, 435 So. 2d 27, 29 (Ala. 1983). In Alabama, there is a presumption that the use of a right-of-way is permissive and that the permissive use of a right-of- way for a period of 20 years or more does not ripen into a prescriptive easement. Cotton v. May, 293 Ala. 212, 214, 301 So. 2d 168, 169 (1974). Therefore, a party claiming a prescriptive easement must prove that his or her use of a right-of-way was adverse to that of the owner or under claim of right. Id. The Smiths point out that the evidence at trial was undisputed that the farm road had been used by local farmers and property owners, including Stowe and her predecessors in title, for more than 20 years; that none of the users had sought the Smiths’ permission before using the farm road; and that none of the users had been asked by the Smiths to discontinue their use of the farm road. The Smiths contend that the circumstances in this case are similar to those in Cotton, 293 Ala. at 214, 301 So. 2d at 169 (holding that the use of a "farm road" had been permissive and concluding that the testimony indicating that the users had never asked permission to use the farm road failed to meet the requirements for acquiring a prescriptive easement); and Hanks v. Spann, 33 So. 3d 1234, 1237 (Ala. Civ. App. 2009) (concluding that easement by prescription had not been established when use of a road for more than 20 years had been merely permissive, specifically when "none of the users had sought the permission of the owners before they used the road" and "none of the users had been asked by the owners to discontinue their use of the road"). However, the Smiths fail to acknowledge that the presumption of permissive use may be overcome when, as in this case, the claimant’s use of a right- of-way is the only means of vehicular ingress and egress to his or her property. In such a situation, a landowner is charged with presumptive knowledge that the use of his or her property is under a claim of right. See Belcher v. Belcher, 284 Ala. 254, 257, 224 So. 2d 613, 615 (1969) (holding that, when the users of a private road had used the road to access their property for over 20 years and the road was the only means of vehicular ingress and egress to their property, the owners of the private road had actual or presumptive knowledge of that use and that the use for over 20 years was under a claim of right, thus supporting the existence of a prescriptive easement); see also Quinn v. Morgan, 215 So. 3d 1090 (Ala. Civ. App. 2016) (holding that the Morgans had acquired a prescriptive easement over a private road because they had used the road for 20 years as their only means of vehicular ingress and egress to their property, they had used the road without the owner’s permission, and the owner knew that the Morgans had used the road to access their property); and Ex parte Gilley, 55 So. 3d 242 (Ala. 2010). In other words, when the owner of property has knowledge that an adjoining neighbor is using a right-of-way as the only means of ingress and egress to the neighbor’s landlocked property, the owner must take some affirmative action to restrict the neighbor’s use of the right-of- way. Otherwise, the owner of the property runs the risk of a court’s declaring that the neighbor has established the existence of a prescriptive easement over the right-of- way. In this case, it was undisputed that the farm road was the only means of vehicular ingress and egress to the Stowe property for more than 20 years, either by Stowe herself or by her predecessors in title. Under those circumstances, the Smiths were charged with presumptive knowledge that the farm road was being used under a claim of right. Accordingly, the circuit court did not commit reversible error in declaring that Stowe had established the existence of a prescriptive easement over the farm road to access her property for agricultural and recreational purposes.
B. Appeal No. SC-2023-0200 — Condemnation
[7] The Smiths argue that the circuit court erred in condemning a right-of-way over their farm road, and they raise several arguments as to why they claim the circuit court’s judgment should be reversed. Section 18-3-1, Ala. Code 1975, authorizes the owner of landlocked property to maintain a private condemnation action to obtain a right-of-way to the nearest or most convenient public road. Section 18-3-1 provides:
"The owner of any tract or body of land, no part of which tract or body of land is adjacent or contiguous to any public road or highway, shall have and may acquire a convenient right-of-way, not exceeding in width 30 feet, over the lands intervening and lying between such tract or body of land and the public road nearest or most convenient thereto provided written approval is obtained from the municipal government and the planning board of such municipality."
(Emphasis added.) See also Ex parte Cater, 772 So. 2d 1117, 1121 (Ala. 2000) (noting that, "under § 18-3-1, a landowner is not entitled to condemn a right-of-way across a neighbor’s intervening land if the landowner has an existing, reasonably adequate means of access to his property, or if he could construct such access without prohibitive expense").
Section 18-3-2, Ala. Code 1975, establishes limits on private condemnation actions under § 18-3-1:
"In the establishment and condemnation of such right-of-way, no road or right-of-way shall be established through any person’s yard, garden, orchard, stable lot, stable, gin house or curtilage without the consent of the owner; and the applicant must pay the owner for the value of the land taken and compensation for damage to the land, through which said right-of-way is established, resulting from the establishment of such road or right-of-way."
(Emphasis added.)
The Smiths first argue that the circuit court erred in condemning a right-of-way over their farm road because, they say, the circuit court failed to consider the term "yard" as used in § 18-3-2. This argument is without merit. The Norfolk middle crossing, which traverses its railroad tracks, runs directly into the Smith property, presenting the option of going straight, which leads to a "shop" on the Smiths’ property; the option of going right, which connects to a gravel driveway leading to the Smiths’ house;, and the option of going left, which is the area where the farm road is located. In the judgment, the circuit-court judge indicated that he had personally observed that the area where the farm road was located contained several young trees that had been planted after the condemnation proceeding had been commenced and that the trees were "years from bearing fruit or nuts"; that the area where the farm road was located was "unremarkable, flat and easily traversable"; and that there were "no gardens, orchards. stable lots, stables, gin houses, or curtilage involved in this route." The judge specifically observed that, when crossing the middle track, the curtilage of the Smiths’ house is immediately recognizable as the area beyond and to the east of the farm road. See United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (noting that, to determine the boundaries of a home’s curtilage, courts are instructed to consider whether the area in question is so "intimately" linked to the home itself that it should be afforded Fourth Amendment protection); Ex parte Maddox, 502 So. 2d 786, 788 (Ala. 1986) (noting that the Fourth Amendment protection provided to one’s home also applies to the area immediately surrounding one’s home, "often referred to as the curtilage"); and Holland v. State, 11 Ala. App. 164, 166, 65 So. 920, 920 (1914) ("Generally speaking, the curtilage is the space of ground adjoining the dwelling house, used in connection therewith in the conduct of family affairs and for carrying on domestic purposes."). Photographs of the Smiths’ property contained in the record confirm the judge’s observation that the farm road was not within the curtilage of the Smiths’ house or their yard. Notably, the probate judge also viewed the proposed right-of- way over the farm road, expressly noting that it did not go through the Smiths’ "yard." Rather, according to the probate-court order, Stowe could simply "drive over flat, unimproved land and access the existing, paved crossing, as has been done for at least 50 years." In this case, the fact that the circuit court made no specific finding that the Smiths’ "yard" was not within the condemned right-of-way has no bearing on the propriety of the condemnation judgment when viewing the entirety of that judgment in context. See, e.g., Trans- america Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So. 2d 375, 378 (Ala. 1992) (noting that, when a trial court makes no specific findings of fact, "this Court will assume that the trial judge made those findings necessary to support the judgment").
The Smiths next challenge the circuit court’s finding that it would be cost-prohibitive to condemn a right-of-way over Norfolk’s railroad tracks directly from the Stowe property to U.S. Highway 72. The Smiths specifically contend that the circuit court erred in finding that a new crossing would be cost-prohibitive because, they say, there was no documentary evidence submitted at trial regarding the cost to construct such a crossing. Contrary to the Smiths’ assertion, Stowe introduced into evidence, without any objections, an estimate that Norfolk had obtained from S&S Railroad Construction to remove the middle crossing near the Smith property and to construct a new crossing near the Stowe property. According to that estimate, the cost to install a new crossing was $82,000, with $2,000 of that amount attributable to demolition cost to remove the existing crossing. William Miller, the Public Safety Director for Norfolk, testified that Norfolk had used S&S for prior work and that its prices were generally reasonable. Stowe also testified that she could not afford to construct a new crossing. Based on the evidence presented, the circuit court explained that the cost to install a new railroad crossing would be cost-prohibitive because Stowe had paid $79,000 for her property, the appraised value of the property was $53,700, and the cost to install a new crossing — $82,000 — was 103% of the purchase price of the Stowe property and 152% of its assessed value. See Ex parte Cater, 772 So. 2d at 1122 (holding that cost-prohibitive means "an unreasonable expense disproportionate to the value" of property). The circuit court’s determination that it would be cost-prohibitive for Stowe to build a new railroad crossing to access U.S. Highway 72 is a finding of fact that is adequately supported by the evidence and, thus, under the ore tenus rule, is presumed to be correct. See Ex parte Cater, 772 So. 2d at 1119 ("The ore tenus rule is especially applicable in private condemnation cases under § 18-3-1."); see also Brothers v. Holloway, 692 So. 2d 845, 847-48 (Ala. Civ. App. 1997) ("We note that our standard of review in condemnation cases is highly deferential.").
The Smiths also argue that the western crossing located in Madison County was a reasonable alternative means for Stowe to access a public highway and that the circuit court erred in not declaring Norfolk to be the owner of western crossing. In its judgment, the circuit court explained that, pursuant to a survey in the record, the western crossing was subject to a one- hundred-foot railroad right-of-way but that the owner of the crossing was unknown. The circuit court further indicated that Miller, the Norfolk representative, had testified that, "other than where the tracks are laid," Norfolk did not own property in Madison County in the area where the western crossing was located. The circuit court concluded that, because no deed had been located that identified the owner of the western crossing, Stowe would be required to expend considerable legal fees to identify the owner. The Smiths contend that, with the aid of a "Valuation Map" produced by Norfolk and the guidance provided by this Court in Brown v. Alabama Great Southern R.R., 544 So. 2d 926 (Ala. 1989), the circuit court could have determined ownership of the western crossing, which was subject to the railroad right-of-way. Other than asserting that Norfolk produced the valuation map pursuant to "the requirements of the 1913 Valuation Act which required the Interstate Commerce Commission to assess the value of railroad property," the Smiths’ brief at 38, the Smiths make no attempt to discuss the valuation map or how it would have assisted the circuit court in determining ownership of the western crossing. Moreover, the Smiths provide no discussion of Brown. Notably, the Smiths do not challenge any of the additional reasons cited by the circuit court for rejecting the western crossing as a reasonable alternative means of accessing a public highway. The circuit court explained that, to reach the western crossing, Stowe would have to cross over 440 feet of land belonging to 2 nonparties, but that, to reach the middle crossing, she would have to travel only 246 feet across the Smith property. Finally, the circuit-court judge identified specific safety concerns that he had observed regarding the western crossing: (1) Stowe’s view of oncoming trains upon entering the western crossing would be obstructed by the curvature of the tracks; (2) her view of eastbound traffic when entering the highway would be obstructed by a curve in the highway; and (3) her view of westbound traffic would be limited by the angle of her vehicle to the highway. The circuit court’s findings for rejecting the western crossing as a reasonable alternative means for Stowe to access a public highway are well taken, and those findings are entitled to great deference. Cater, 772 So. 2d at 1119.
[8, 9] Finally, despite the fact that Norfolk did not appeal the circuit court’s judgment condemning a right-of-way over its middle crossing, the Smiths nonetheless attempt to challenge the circuit court’s authority to do so. The Smiths specifically argue that the circuit court erred in condemning a right-of-way over the middle crossing because, they say, "it would appear" that Alabama law does not permit a private party to condemn a right-of-way over an active railroad track. The Smiths’ brief at 41. In other words, the Smiths challenge that portion of the circuit court’s judgment that was adverse only to Norfolk. "Only a party prejudiced or aggrieved by a judgment can appeal…. ‘A party cannot claim error where no adverse ruling is made against him.’ " Alcazar Shrine Temple v. Montgomery Cnty. Sheriff’s Dep’t, 868 So. 2d 1093, 1094 (Ala. 2003) (quoting Holloway v. Robertson, 500 So. 2d 1056, 1059 (Ala. 1986)); see also Sho-Me Motor Lodges, Inc, v. Jehle-Slauson Constr. Co., 466 So. 2d 83, 88 (Ala. 1985) ("[W]hen an error applies only to a party who does not appeal therefrom, another party cannot make any such error an issue on appeal."). The Smiths assert several reasons that, they say, confer on them the capacity to appeal from that portion of the circuit court’s judgment unfavorable to Norfolk; however, they provide no authority for any of the reasons they cite. Moreover, even assuming that the Smiths had the capacity to appeal from that portion of the circuit court’s judgment adverse to Norfolk, the Smiths never raised their specific argument before the circuit court. Therefore, this Court would be precluded from addressing their argument for the first time on appeal. See ITEC, Inc. v. Automated Precision, Inc., 623 So. 2d 1139, 1140 (Ala. 1993) ("Issues not raised before the trial court will not be considered for the first time on appeal.").
IV. Conclusion
The circuit-court judge received oral testimony, considered evidentiary materials, personally inspected the properties at issue, and entered a judgment containing detailed findings, all of which are supported by the record. The Smiths have failed to demonstrate that those findings are clearly erroneous or against the great weight of the evidence. Accordingly, the judgment of the circuit court is affirmed.
SC-2023-0198 — AFFIRMED.
SC-2023-0200 — AFFIRMED.
Parker, C.J., and Stewart, Mitchell, and Cook, JJ., concur.
Wise, J., recuses herself.
APPENDIX
390 So.3d 1079.bmp