Opinion
7 Div. 976.
November 25, 1949.
Appeal from the Circuit Court of Calhoun County, Leslie C. Longshore, J.
Knox, Liles, Jones Woolf, of Anniston, for appellants.
Ross Blackmon, Anniston, and William C. Irby, Jr., Jacksonville, for appellee.
The rule in favor of a finding of facts by the court trying a case without a jury has no application where the material and controlling facts are established by undisputed evidence. Henderson v. Henderson, 228 Ala. 438, 153 So. 646; Duggan v. Duggan, 227 Ala. 92, 148 So. 844; Commercial Credit Co. v. Tarwater, 215 Ala. 123, 110 So. 39, 48 A.L.R. 1437. Mere user of land cannot raise a presumption of dedication unless the user is adverse to the owner. The presumption of dedication to the general public depends more on the owner's assent than on the length of time the user has continued; and where the owner has frequently asserted his rights against the public during the continuance of the user, no matter how long, such user cannot operate as a dedication. Parker v. Fuller, 248 Ala. 457, 28 So.2d 207; Merchant v. Markham, 170 Ala. 278, 54 So. 236; Sultzner v. State, 43 Ala. 24; Steele v. Sullivan, 70 Ala. 589; Wilson v. Lakeview Land Co., 143 Ala. 291, 39 So. 303; Warren v. Sims, 204 Ala. 606, 86 So. 907; Tutwiler v. Kendall, 113 Ala. 664, 21 So. 332.
An open, defined alley or roadway in continuous use by the public without let or hindrance becomes a public way by prescription, the burden being upon complainant to prove the use of the alley, street or roadway by the public for a period of twenty years. The burden then shifts to the landowner to show the usage was permissive only, in recognition of his title or rights, to reclaim the possession. Ritter v. Hewitt, 236 Ala. 205, 181 So. 289; Birmingham Trust Savings Co. v. Mason, 222 Ala. 38, 130 So. 559; Still v. Lovelady, 218 Ala. 19, 117 So. 481; Scruggs v. Beason, 246 Ala. 405, 408, 20 So.2d 774. It is the character rather than the quantum of use which controls in determining whether a road is a private way. Valenzuelo v. Sellers, 246 Ala. 329, 20 So.2d 469; McGough v. McGough, 245 Ala. 544, 17 So.2d 765; Southern R. Co. v. Williams, 243 Ala. 429, 10 So.2d 273; Locklin v. Tucker, 208 Ala. 155, 93 So. 896. Owner of strip of land would have no right to blockade it by fence if the strip were a public thoroughfare by prescription. Parker v. Fuller, 248 Ala. 457, 28 So.2d 207.
The original bill of complaint in this cause was filed by Mrs. W. R. Brice against Mrs. Buna C. Keener and Mary Otelia Keener, seeking an injunction restraining respondents from closing or obstructing an alleged public alley. The case turns on whether or not a strip of land twelve feet wide and ninety feet long is a public alley in the city of Anniston, Alabama. A map or plat of the alleged alleyway, not drawn to scale, is here inserted for a better understanding of the opinion.
The fourth paragraph of the original bill is as follows: "Complainant avers that heretofore, to wit, on the 25th day of March, 1913, a public alley was established and created running East and West between the East end of complainant's property and that now owned by Miss Ruth Neeley, said Neeley lot lying next East of the respondents' lot and next south of the south line of the alley involved in this suit, said alley being of the approximate width of twelve feet and beginning immediately to the rear of the respondents' said lot. Complainant avers that said alley is a public alley and constitutes as such a part of the highway system of the said City of Anniston. She avers that the status of this alley has continuously existed for a long period of time; to wit, approximately 34 years, next preceeding the filing of this bill of complaint."
By amendment, the complainant alleged that "she has been in the open, notorious, continuous, and adverse use of said alleyway for a period of ten and twenty years respectively next preceding the filing of her bill of complaint in this cause, asserting and claiming the bona fide right to make use of said alleyway independent of any objection on the part of any person or persons asserting title to said alleyway to her exclusion. She further avers that her right to use said alley as above set forth has never been contested or disputed by any of her coterminous owners except the respondent, and that said respondent and her predecessors in title never made any objection to her right to use said alley until more than twenty years after her continuous use of same as herein above set forth."
Neither the bill as originally filed nor the bill as amended was tested by demurrer.
Respondents answered and, in substance, claimed ownership of the strip of land in question; denied that it was a public alley; made their answer a cross-bill and prayed that the court decree title to said strip in respondents, and that complainant and cross-respondent be enjoined from entering and trespassing upon the property of cross-complainants.
The trial court heard the evidence ore tenus and entered a decree to the effect that the strip of land involved had been used by the general public as an alleyway for more than twenty years prior to the filing of the bill of complaint and declared it to be a public alley. Further, the trial court dismissed respondents' cross-bill and perpetually enjoined them from obstructing the use of said strip of land as a public alley.
The record title to the strip of land in question, so far as this record shows, is and has been since 1916 in respondents and their predecessors in title.
"The rule established by the majority of American courts, though stated in varying forms, appears to be that, upon its appearing that a servitude has been enjoyed during the period required for prescription, openly, continuously and uninterruptedly, a presumption arises, in the absence of any other explanation, that the user was adverse and under a claim of right. The burden is then upon the owner of the soil to show that the use was permissive or otherwise that it was not adverse. See the annotation to the case of Zollinger v. Frank, 110 Utah 514, 175 P.2d 714, in 170 A.L.R. 770, 776, 779.
"Such is the rule in this jurisdiction as to the uninterrupted user by the general public of a roadway over reclaimed lands, for a period of twenty years or more. Locklin v. Tucker, 208 Ala. 155, 93 So. 896 (wherein conflicts were recognized and some holdings overruled); Newell v. Dempsey, 219 Ala. 634, 122 So. 881; Scruggs v. Beason et al., 246 Ala. 405, 20 So.2d 774." West v. West, 40 So.2d 873, 874. See, also, Ritter v. Hewitt, 236 Ala. 205, 181 So. 289; Parker v. Fuller, 248 Ala. 457, 28 So.2d 207.
252 Ala. 296.
Here the testimony is in conflict as to the matter of user, some of it tending to establish a public user and some of it denying such user. It would serve no good purpose to set it out. We have examined all of the testimony with care and after indulging the usual presumptions which prevail in cases where the trial court hears the evidence ore tenus, we are unwilling to say that there was error in the decree rendered, and it will accordingly be affirmed.
Affirmed.
BROWN, LAWSON, and SIMPSON, JJ., concur.