Court order 300 ruffner road

DOCUMENT 197 ELECTRONICALLY FILED 10/2/2017 12:01 PM 01-CV-2017-900585.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA BIRMINGHAM DIVISION NATURE COALITION RUFFNER ) MOUNTAIN INC., Plaintiff, ) ) V. ) Case No.: ) J&S INTERNATIONAL, INC., ) CADENCE BANCORPORATION, ) Defendants. )

CV-2017-900585.00

ORDER This matter came to be heard on the 29th day of September, 2017, upon motion to reconsider this Court's Order of September 7, 2017, regarding the parties' motions for summary judgment.

STATEMENT OF UNDISPUTED FACTS ACCORDING TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (FOOTNOTES OMITTED) “Ruffner Mountain Nature Preserve is a 1,042-acre nature preserve outside of Birmingham, Alabama, that provides the city a greenspace that is larger than Central Park in New York City. The Preserve is managed by Plaintiff Ruffner Mountain Nature Coalition, Inc., a 501(c)(3) nonprofit. Work began to form the Preserve in 1974, and the Preserve officially opened to the public in 1977. The Preserve contains miles of hiking trails utilized by the public, as well as school and

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university classes. Since at least 1985, the Preserve has maintained a trailhead, which is an entrance or access point to the Preserve’s extensive trail system, located on Ruffner Road in Irondale, Alabama. The trailhead on Ruffner Road is commonly referred to as the “Ballfield Trailhead” or “Ballfield Entrance” because visitors utilize the Irondale Ballfields across the street from the trailhead for parking. Approximately 25,000 visitors per year use the Ballfield Trailhead to access the Preserve. The Ballfield Trailhead has also long been used by Ruffner Mountain as the emergency evacuation entrance to the Preserve for accidents that occasionally occur inside the Preserve.

A six acre parcel adjacent to the Preserve, which borders the Ballfield Trailhead, had long been unused, undeveloped, heavily wooded wilderness held by Walter Energy, Inc. and its predecessors. In February 2016, the six acre parcel was purchased by Defendant J&S International, Inc. for the erection of a granite and marble manufacturing facility. Seven months after the purchase of the parcel, J&S International had a survey of the property conducted. The border markers had long been buried, and the surveryor used a metal detector to locate and uncover the border markers. The survey revealed that the Ballfield Trailhead and a small portion of the Ruffner trail system lay on the edge of the six acre parcel purchased

by J&S International. In February 2017, J&S began preparing for construction and erected a chain link fence and gate, topped with barbed-wire, blocking the Ballfield

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Trailhead. Ruffner responded by filing this action claiming ownership of the Ballfield Trailhead and trail through adverse possession, or in the alternative, a prescriptive easement over the property.

The Ballfield Trailhead and trail that crosses a small corner of the property deeded to J&S International has been included on official Ruffner trail maps distributed to the public, donors, members, and staff since 1985. During the Preliminary Injunction hearing, a frequent visitor to the Preserve, Michelle Reynolds, testified that she has continuously used the Ballfield Trailhead since the fall of 1988, hiking with various friends and colleagues. The Executive Director of Ruffner, Carlee Sanford, testified that she has used the Ballfield Trailhead continuously as a visitor to the Preserve since 2010. Moreover, the owner of J&S International, Steve Van Winkle, admitted that he personally used the Ballfield Trailhead to access the Preserve for trail running since 2010.

Because the exact boundaries of the adjoining property purchased by J&S International were unknown until the survey was performed in September 2016, Ruffner never obtained permission to use the Ballfield Trailhead or adjoining trail located on the edge of the property. The former land manager for Walter Energy, Roger Crabb, testified by affidavit that Walter Energy never gave either express or implied permission to Ruffner for use of the property. Ms. Sanford also testified that she searched all Ruffner records and found no evidence that Ruffner had ever

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requested or obtained permission to use the property. Furthermore, a metal bar was erected across the Ballfield Trailhead – the only access point to the six acre property owned by Walter Energy – that blocked vehicles from entering the property. Visitors either stepped over or around the metal bar to gain access to the trailhead and trail.”

OPINION Plaintiff asserts that summary judgment is due as to each of the Defendant’s counterclaims of 'justiciability', 'trespass to and upon the property', 'slander of title' and 'fraud'. The basis for the assertions as set forth therein is that there is either no action upon which such claims may be based, and/or that insufficient evidence has been presented in support of such claims.

After further, careful consideration of the assertions and argument of the parties, and following review of the evidence of record in this matter, the Court finds there to be no materially disputed issue of fact, such that, upon application of the law, summary judgment is due to be granted.

The Court finds that there is no action available at law in Alabama known as 'justiciability'. At best, such is a defense, for which no corresponding action exists.

Summary judgment is therefore granted as to the claim of justiciability.

The Court further finds 'trespass to and upon the property' to be unavailable against one utilizing an easement, by right, or else pursuant to a claim of adverse possession. Summary judgment is therefore granted as to the claim of trespass to and upon the property.

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As to 'slander of title', the Court finds the evidentiary submissions reflect true statements as to the progress of lawful proceedings, made without intent of malice, and otherwise non-slanderous. Summary judgment is therefore granted as to the claim of 'slander of title'.

As to the 'fraud' count, such has been neither pled with the particularity required, nor supported by the evidence. The sole assertion appears to rely upon testimony of a witness, elicited in court and through pleadings, upon which an action for fraud may not lie. Summary judgment is therefore granted as to the claim of 'fraud'.

The Defendant's recent submission argues that this court has no jurisdiction over this action. Such is predicated on the unsupported assertion that this Court may not establish a prescriptive easement until a federal court first determines that no railroad right-of-way exists.

The Defendant is without standing to assert a defense (or claim) on behalf of a former interest holder, and should otherwise be estopped from asserting a continuing easement for rail use as an alleged bar to recovery in a claim for adverse possession and prescriptive easement.

Accordingly, summary judgment is granted as to Defendant's claim of lack of jurisdiction.

Having disposed, by summary judgment, of each of the Defendant's counterclaims, the Court next considers the Plaintiff's motion for summary judgment as to the Plaintiff’s claims.

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After further, and careful consideration of the Plaintiff’s assertions, and following review of the evidence and argument of record in this matter, the Court finds as follows: Sufficient evidence as to each of the elements necessary in proof of a claim for adverse possession, and for the establishment of a prescriptive easement are of record in this action, the same as set forth with greater specificity in the Plaintiff’s submissions in support of its motion.

The Court finds persuasive the evidence of the Plaintiff's continuous and exclusive use and access to and across the subject property, for more than the statutorily-requisite twenty (20) years, adversely to the owner, in an open and notorious manner, under claim of right, and with no other action to resolve being filed in any court.

The Court finds that the requested relief is due to be granted as to the Plaintiff's claim of adverse possession to and upon the real property described in this action.

The Court further finds the evidence of record sufficient to describe the area utilized throughout the adversely possessed period, to wit: beginning at the southeast corner of the property, then continuing along the existing Ruffner Road boundary in approximately a southwesterly direction a distance of 50', then turning in approximately a northwesterly direction, maintaining a line parallel to that of the eastern boundary of the subject property, a distance of 200', then right, in an approximate northeasterly direction to the point of intersection with the eastern

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boundary and then southeasterly, along said boundary line, to the point of beginning.

The Plaintiff shall, within fourteen (14) days, supply the Clerk of the Court with the above description, along with a deed sufficient for entry, and the Clerk of the Court is herein directed in entry of such a Clerk's Deed upon the record.

The Court further Orders that the mortgage or mortgages, liens or encumbrances held by the Defendant, Cadence Bank, are due to be and are hereby amended, modified and reformed, such as to exclude the above described parcel from any such encumbrance.

All other or further requests for relief are denied. Â The above being a final order, the trial of this matter is removed from the docket, with costs of court taxed, as paid.

DONE this 2nd day of October, 2017. /s/ CAROLE C. SMITHERMAN CIRCUIT JUDGE