Auerbach v. Parker
| Decision Date | 28 April 1989 |
| Citation | 544 So.2d 943 |
| Parties | Edwin H. AUERBACH and Elva Auerbach v. Richard PARKER. 87-1268. |
| Court | Alabama Supreme Court |
John T. Alley, Jr. and William B. Alverson, Jr. of Webb, Crumpton, McGregor, Sasser, Davis & Alley, Montgomery, for appellants.
Stephen M. NeSmith of Riggs, NeSmith & Halstrom, Montgomery, for appellee.
Edwin H. Auerbach and Elva Auerbach appeal from the trial court's judgment that a rural Montgomery County road running over land owned by Richard Parker to land owned by the Auerbachs is not a public road and that the Auerbachs have not acquired an easement by prescription for the road's use.
The old "farm market wagon road" at issue, which appears on a 1901 map, connects Hillabee Road with Mount Zion Road in rural Montgomery County and was used by families in the early 1900's to reach Mount Zion Road without traveling the two to three miles necessary to otherwise reach Mount Zion Road from Hillabee Road. In 1938, the Auerbachs purchased land behind land owned by Parker's predecessor in title (Mrs. F.M. Gibson) and began using the road to reach their property. The road ran over the Gibson property and beside the Gibson home before reaching the Auerbach property and eventually joining Mount Zion Road. Over a number of years, however, the Auerbachs purchased all of the property behind the Gibson property, so that only the Gibson property and the Auerbach property were served by the road.
The record indicates that the Auerbachs traveled to their property to hunt, ride horseback, pick flowers, and tend to their fruit trees and that in doing so they used the road to come and go to their house, without seeking permission from Mrs. Gibson; in fact, testimony indicates that the Auerbachs frequently stopped to visit with Mrs. Gibson, and that no one seeking access to the Auerbach property (either family members or employees) requested permission from Mrs. Gibson before using the road. Further, the Auerbachs used the road to bring equipment onto their property to cut and bail hay, as the record indicated that a "boggy bottom" prevented the equipment from reaching the hay field when brought in from Mount Zion Road.
Both the Auerbachs and Mrs. Gibson erected barriers on the road: Mrs. Gibson erected a "gap" across the road near her home to control her cattle, and the Auerbachs erected a locked gate at their property line. Although the testimony is disputed as to whether Mrs. Gibson controlled access to the road, a gate over the "gap" was never locked, and the Auerbachs, when driving to their property, would open it, drive through, and close it behind them. But after purchasing the remaining property behind the Gibson home in 1957, the Auerbachs were the only family other than the Gibsons (Mrs. Gibson and her husband) to use the road. The record reflects that the completion of Mount Lebanon Road to Hillabee Road alleviated the need to travel the Gibson-Auerbach road to reach Mount Zion Road; the county stopped maintaining the road, and by 1967 it no longer appeared on a map of the area.
After Mrs. Gibson's death in 1984, Parker (who inherited the property) erected a gate over the road to protect the Gibson home from theft, and the record indicates that he gave the Auerbachs a key to gain access to the road. A dispute arose between Parker and the Auerbachs as to the number of people given access to the road by the Auerbachs, and Parker placed a second lock on that gate. Testimony reflects that Parker was willing to unlock the gate upon notice from the Auerbachs that they required access to the road, but the Auerbachs testified that such an arrangement was not feasible for hay farming. The Auerbachs filed their lawsuit on May 12, 1987, seeking the declaration of a prescriptive easement for the use of the road.
The issues on appeal are whether the trial court erred in declaring the road to be a private road and in denying the Auerbachs a prescriptive easement to use the road across Parker's property. The trial court's judgment, being based on ore tenus testimony, will not be disturbed on appeal unless it is unsupported by the evidence or is palpably wrong. This Court, therefore, "will indulge all favorable presumptions to sustain that court's conclusion, and it will be disturbed on appeal only if shown to be plainly erroneous or manifestly unjust." CRW, Inc. v. Twin Lakes Property Owners Ass'n, Inc., 521 So.2d 939, 941 (Ala.1988). (Citations omitted.)
The threshold issue is whether the trial court erred in declaring the road to be private. A public way or road is established in one of three ways: first, by a regular proceeding for that purpose; second, by a dedication of the road by the owner of the land it crosses and subsequent acceptance by the proper authorities; or, third, by virtue of its being generally used by the public for 20 years. CRW, Inc. v. Twin Lakes Property Owners Ass'n, Inc., 521 So.2d at 941. The record is replete with evidence that the Gibson-Auerbach road was used by the public to reach Mount Zion Road from Hillabee Road for more than 20 years, that it was travelled by families who lived on the road...
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J.A.P. v. L.W.A.
...v. Parker, 558 So.2d 900 (Ala.1989), our supreme court had reversed a judgment declaring a road to be a private road. See Auerbach v. Parker, 544 So.2d 943 (Ala.1989). On remand, the trial court entered a judgment declaring the road to be a public road and ordering the Auerbachs and Parker ......
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J.A.P. v. L.W.A., No. 2030244 (AL 7/2/2004), 2030244.
...Parker, 558 So. 2d 900 (Ala. 1989), our supreme court had reversed a judgment declaring a road to be a private road. See Auerbach v. Parker, 544 So. 2d 943 (Ala. 1989). On remand, the trial court entered a judgment declaring the road to be a public road and ordering the Auerbachs and Parker......
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Town of Schoepke v. Rustick, No. 2005AP3183.
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Barber v. Landrum
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