Couple files countersuit against Alabama Power
Claim agents of the company gave them go-ahead to build in easement

By Scott Wright

CENTRE — Defendants in a lawsuit over who has control of the easement around Weiss Lake filed a countersuit against the plaintiff on Thursday.

The defendants in the suit, Charles and Nancy Richards, live in Calhoun County, Ga. The couple also own a camper trailer that sits on lakefront property in Cherokee County. In a lawsuit filed Feb. 20 in Cherokee County Circuit Court, Alabama Power Co. sued the couple for erecting an enclosed structure around the camper trailer, alleging that it violated the company's easement rights.

According to federal regulations and state Supreme Court precedent, Alabama Power has the right to determine what type and size structures are allowed inside the flood easement of Weiss Reservoir. Alabama Power lawfully obtained rights to the flood easement when it purchased a license from the Federal Power Commission (now known as the Federal Energy Regulatory Commission) to construct Weiss Dam in the late 1950's.

The company's easement surrounds the 30,000-acre, man-made lake at an elevation several feet higher than summer full pool, 564 ft. above sea level.

Both parties in the lawsuit agree that the couple obtained a permit from the company allowing them to make improvements to the property, which lies partially within the flood easement. Alabama Power's complaint charges that the Richardses were repeatedly told during construction that their new enclosure violated permit guidelines.

In their countersuit, filed Thursday afternoon in Circuit Clerk Dwayne Amos's office, the defendants admitted building the enclosure but denied Alabama Power's claims that they were notified during construction that it violated their permit. They also denied the company's claim that they were instructed what they could do to bring the structure into compliance during at least one on-site inspection by agents of the company.

The defendants also charge that one or more of the “unnamed agents” responsible for enforcing Alabama Power's shoreline management policies visited their property and either concealed or misrepresented “material facts.” The defendants claim that by failing to inform them of potential problems before the structure was completed, they are at least partially at fault for any subsequent easement violations.

The attorney for the Richards family said using the term "unnamed agents" in the countersuit effectively props open the door for follow-up legal action.

"In Alabama if you're not yet sure who has committed a wrong, you can name those liable parties as you discover who they are," said J. Shane Givens, the attorney for the defendants. "If we find out someone who works for Alabama Power told my clients they were within the guidelines of their permit, leaving them unnamed now would allow us to bring action against them without filing additional documents."

Givens declined to offer the names of any Alabama Power agents who might be the target of future legal action.

"We don't know who they are right now, but we are going to try to find out," he said.

The Richardses seek to have the case dismissed, or to have Alabama Power pay for the cost of removing the structure if the court rules against them.

The company seeks restoration of its property rights by having the defendants remove the offending structure at their own expense and reimbursement of all court costs. Calls to the Birmingham law firm that represents Alabama Power were not returned by press time.

According to Amos, no court date has been set.