Accretion and Avulsion – Summary Judgment Burden Where Movant Asserts Lack of Proof on an Essential Element

Robinson v. Harrigan Timberlands, et al., [Ms. 1200563, May 3, 2022] __ So. 3d __ (Ala. 2022). The Court (Parker, C.J.; Wise, Stewart, and Mitchell, JJ., concur; Bolin, Shaw, Bryan, Sellers, and Mendheim, JJ., concur in the result) affirms a summary judgment dismissing claims asserted by Robert Clyde Robinson against several timber companies for cutting timber on land, located between two creek beds, that Robinson alleged was his. The boundary line between Robinson’s parcel and an adjoining parcel owned by Harrigan Timberlands Limited Partnership (“Harrigan”) parcel was simply described in both deeds as “Bassetts Creek.” The current channel of Bassetts Creek was an old creek bed that Robinson alleged was the “Bassetts Creek” referred to in the deeds. The land between the current channel and the old creek bed (“the disputed property”) was approximately 12.5 acres. All of the claims asserted by Robinson were premised on his “legal title to, or exclusive possession of, the disputed property and the timber on it.” Ms. *5. “The timber companies asserted that Robinson lacked evidence that Bassetts Creek had originally followed the old creek bed and that its course had shifted to the current channel by avulsion.” Ms. *7.

The Court applied the settled “common-law rule, if Bassetts Creek either is in its original location or moved from the old creek bed by accretion, then Harrigan owns the disputed property. Robinson owns the disputed property only if Bassetts Creek moved from the old creek bed to its current channel by avulsion.” Ms. *9.

The Court first rejects Robinson’s argument that the timber companies failed to make a prima facie showing that they were entitled to summary judgment:

On a motion for a summary judgment, when the burden of persuasion at trial would be on the nonmovant (here, Robinson), the movant (the timber companies) may make the required prima facie showing “‘either by submitting affirmative evidence that negates an essential element in the nonmovant’s claim or ... by demonstrating ... that the nonmovant’s evidence is insufficient to establish an essential element of the non movant’s claim ....’” Ex parte General Motors Corp., 769 So. 2d 903, 909 (Ala. 1999) (quoting Berner v. Caldwell, 543 So. 2d 686, 691 (Ala. 1989)(emphasis added by Robinson v. Harrigan). ... Because Harrigan bore the burden of persuasion on ownership/avulsion, the timber companies could meet their summary-judgment burden by pointing out how he lacked evidence of ownership.”

Ms. **9-11.

Robinson argued that the trial court improperly adopted a presumption in favor of accretion. The Court disagrees and explains:

Robinson already bore the ultimate burden of production as to all facts necessary to demonstrating his ownership, including that Bassetts Creek moved by avulsion. Therefore, a presumption in favor of accretion was not necessary to impose on Robinson a burden of production to show avulsion. Accordingly, such a presumption would not have affected the burdens in this case, and we do not decide whether to adopt such a presumption. Ms. *13.

The Court affirms the summary judgment, noting that some of the evidence Robinson relied on to demonstrate ownership was first submitted with his motion to reconsider so that the trial court was free to disregard it. Ms. *18. The Court also rejects Robinson’s argument that a fact-finder could infer avulsion from “the angle at which the current channel leaves the old creek bed” because the subject “requires knowledge beyond that of the ordinary layperson, the inference must be supported by expert testimony.” Ms. *15.

Finally, the Court rejects Robinson’s reliance on his deposition testimony which he referred to only generally in his sur-reply in the trial court and reiterates:

Horn v. Fadal Machining Ctrs., LLC, 972 So. 2d 63, 69-70 (Ala. 2007) (holding that Rule 56(c)(1), which applies to both summary-judgment motions and responses, requires specific references to portions of record demonstrating whether an issue of fact exists); 10A Arthur R. Wright et al., Federal Practice and Procedure § 2721 (4th ed. 2016) (“[A trial] court is required only to consider the materials cited by the parties.... [A] party using materials either to assert that a fact cannot be or that it is genuinely disputed must cite to ‘particular parts of the materials supporting its position and should not simply attach voluminous documents without specific explanation.” (quoting Rule 56(c)(1)(A), Fed. R. Civ. P.; footnote omitted)).

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