Baptist Foundation of Alabama v. Penn

• Decision Date: 18 December 1975
• Citation: 324 So.2d 766,295 Ala. 122
• Parties: The BAPTIST FOUNDATION OF ALABAMA v. Walter L. PENN et al. SC 1112.
• Court: Alabama Supreme Court

Page 766

324 So.2d 766

295 Ala. 122

The BAPTIST FOUNDATION OF ALABAMA v. Walter L. PENN et al.

SC 1112.

Supreme Court of Alabama.

Dec. 18, 1975.

Rehearing Denied Jan. 15, 1976.

Richard H. Gill, Montgomery, for appellant.

Sterling G. Culpepper, Jr., Montgomery, for appellees.

BLOODWORTH, Justice.

The Baptist Foundation appeals from a final decree of the Circuit Court of Montgomery County enjoining it from obstructing a road. We affirm.

This case began as a suit by The Baptist Foundation to enjoin a continuing trespass to lands held by it under a testamentary trust. In its petition, The Baptist Foundation alleged that appellee Penn had crossed and was continuing to cross an old roadway or trail on the Foundation's lands and was grading, scraping, and filling the roadway to utilize it as access to a trailer park Penn planned to build. Appellee Penn denied any trespass by asserting that the roadway was the subject of a prescriptive easement in favor of the general public.

Following a lengthy hearing, the court found that the roadway in question had become a public roadway by prescription and denied the Foundation's request for a temporary injunction against Penn.

Penn then filed a cross bill averring that the road in question was a public road by prescription, seeking to enjoin the Foundation from any interference with his right to use the road and to improve it, and adding as parties various other owners of land adjacent to the road.

At the conclusion of a hearing held to consider Penn's cross bill, the court again found that the road in question is a public road. The court also found that Penn would suffer damages greater in kind and degree than that of the general public if the road were blocked or obstructed and granted Penn's request for an injunction enjoining the Foundation from obstructing the road, from which decree the Foundation now appeals.

The Foundation contends that it made out a prima facie case at the preliminary injunction hearing by establishing its title to, and possession of, the land on which the road is situated, by establishing that the road lay entirely within its property, by establishing that Penn did not have its permission to change the character of the road, and by establishing that Penn did enter its land with road machinery, trucks, and fill material. The Foundation further contends that, because Penn was the moving party at the second hearing, Penn bore the burden of affirmatively establishing a prescriptive right to use the road, as well as the burden of establishing Penn's individual right to an injunction different from the general public. It is the Foundation's contention that Penn did not meet these burdens.

Although it is undisputed that the roadway in question was never a road recognized and maintained by the county, the exact status of the existing roadway is the subject of much dispute.

According to the Foundation, the roadway in question was merely 'a trail winding across the property, heavily grown up with underbrush and small trees and impassable by car.' Relying on the authority of Benson v. Pickens County, 260 Ala. 436, 70 So.2d 647 (1954), the Foundation maintains that the rule is that the use of such a road is presumed to be permissive and that the party claiming an adverse use has the burden of proving it. It is insisted, in brief, that there is no evidence in the record of any use that was 'adverse, hostile to the title of (The Baptist Foundation or its predecessor in title), and under a claim of right,' and that, to the contrary, the witnesses conceded that all use of the roadway was with the assumed or express permission of the owner.

According to Penn, the roadway is an open, well-defined road with a history of at least 20 years of continuous public use. Under Penn's version of the facts, the rule of Benson is inapplicable and the rule of Ayers v. Stidham, 260 Ala. 390, 71 So.2d 95 (1954), is controlling.

In Ayers this Court held that 'an open, defined roadway, through reclaimed land, in continuous use by the public as a highway without let or hindrance for a period of twenty years becomes a public highway by prescription. . . . (A) presumption of dedication or other appropriation to a public use arises.' 260 Ala. at 392, 71 So.2d at 97. Moreover, once the Ayers presumption arises, the burden is then on the landowner to show that the use was permissive and that it was in recognition of the landowner's title and right to possession. 260 Ala. at 392, 71 So.2d at 97.

Whether the rule of Ayers or Benson is controlling in a particular case depends upon the character and use of the road in question. Consequently, the precise question presently before this Court in the...