Opinion
5 Div. 932.
January 14, 1926.
Appeal from Circuit Court, Lee County; N.D. Denson, Judge.
Frank M. De Graffenried, of Seale, for appellant.
Dedication of a road or street will be presumed when the public have used it for twenty years without objection from the owner. Locklin v. Tucker, 208 Ala. 155, 93 So. 896; Carter v. Walker, 186 Ala. 140, 65 So. 170. The allegations of the bill are sufficient. Birmingham v. Carlson, 209 Ala. 428, 96 So. 333.
Denson Denson, of Opelika, for appellee.
If user be not exclusive, and not inconsistent with the rights of the owner, it will be presumed to be permissive. Jesse French Co. v. Forbes, 129 Ala. 477, 29 So. 683, 87 Am. St. Rep. 71; Lecroix v. Malone, 157 Ala. 445, 47 So. 725; 1 Michie's Ala. Dig. 151; Hill v. Wing, 193 Ala. 312, 69 So. 445. A permissive user will not ripen into title by prescription. Steele v. Sullivan, 70 Ala. 595. The demurrer was properly sustained. Alexander City Co. v. C. of Ga., 182 Ala. 516, 62 So. 745.
In Locklin v. Tucker, 208 Ala. 155, 93 So. 896, we said:
"We think it is a sound rule of evidence, based on considerations of experience and practical convenience, that when the evidence shows an uninterrupted user by the general public of a roadway over reclaimed lands, for a period of 20 years or more, and there is nothing in the evidence to contradict the presumption of a dedication by the owner, such a presumption will be indulged from the fact of such user alone. This is the rule plainly deducible from the long line of cases above cited, beginning with Hoole v. Atty. Gen., 22 Ala. 190,
and ending with Carter v. Walker, 186 Ala. 140, 65 So. 170."
In Carter v. Walker, supra, we said, somewhat more specifically:
"That the general use of a roadway by the public for 20 years will, if unexplained, raise a presumption of the existence of all other elements and conditions necessary to create a highway by prescription."
These presumptions are not applicable to a public user for less than 20 years, in which case, of course, all the elements of adverse possession must be affirmatively shown.
Under the principles stated above, we think the bill of complaint shows a state of facts from which, unexplained, a legal presumption arises of a dedication of the roadway by the owner to the public use. This presumption, it is true, is prima facie only, but it places on the owner the burden of showing that the public user was permissive merely, or not under claim of right; or to show some fact negatory of the fact of dedication.
Presumptions of law, though prima facie only, need not be expressly pleaded. It is sufficient to aver the facts from which the presumption arises. O'Neil v. B'ham. Brewing Co., 101 Ala. 383, 389, 13 So. 576. Hence it was not necessary to supplement the other showings of the bill by averring that the public user of the roadway was exclusive; the contrary, if true, being matter of defense to be set up by answer.
The question here presented is one of pleading only, and, under the authorities above cited, we hold that the grounds of demurrer interposed are not well taken, and that the demurrer should have been overruled.
It is therefore ordered that the decree sustaining the demurrer to the bill of complaint be reversed, and a decree be here entered overruling the demurrer.
Reversed, rendered, and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.