Belcher v. Belcher

• Decision Date: 12 June 1969
• Docket Number: 6 Div. 629
• Citation: 284 Ala. 254,224 So.2d 613
• Parties: James BELCHER et al. v. Thurmon E. BELCHER et al.
• Court: Alabama Supreme Court

Page 613

224 So.2d 613

284 Ala. 254

James BELCHER et al. v. Thurmon E. BELCHER et al.

6 Div. 629.

Supreme Court of Alabama.

June 12, 1969.

Beavers, Shannon, Harrison & Odom, Birmingham, for appellants.

Barnett & Tingle, Birmingham, for appellees.

MERRILL, Justice.

This appeal is from a decree in a declaratory judgment proceeding in which appellants-respondents were permanently enjoined from blockading a roadway across their property or from interfering with the use of said road by the appellees, and an easement was granted to appellees for use of the roadway, together with the right to make necessary and proper repairs.

The property of the complainants-appellees is contiguous to that of appellants and lies immediately west of that of appellants. Although their surnames are identical, the parties are not related. Appellants acquired title to their property in 1965 and appellees acquired titled in 1968 from a grantor who had owned the property for twenty years. Appellees' tenant had lived on the land since 1955, except for two Appellees' bill of complaint as amended alleged that they were the owners of certain described property, that their only means of ingress and egress to said property was by a road running through the property of the appellants, which is contiguous to property of the appellees, and that for well over twenty years appellees and their predecessors in title have used said road as the only means of ingress and egress to said property. In a cross bill, appellants asked $5,000.00 as damages because appellees had dumped sand and scrap iron in the road.

years he had lived in a house on appellants' land.

Fifteen witnesses were heard by the court. The evidence was in conflict and there was evidence of ill feeling between the parties which had resulted in appellants blocking the road at or near their common property line.

We quote excerpts from the final decree:

'Complainants base their claim of right to the use of said roadway over the property of Respondents upon an alleged easement acquired by Complainants and their predecessors in title by use of the said roadway for a period greatly in excess of twenty years (and said user is uncontroverted by all the evidence).

'The Respondents contended that, although the said user is established, the user was purely permissive and was not potent to convey an easement or right of ingress and egress to the residence and lands of Complainants.

FINDING OF FACTS

'1. This cause presents a justiciable controversy properly presented for decision to a Court of equity.

'2. There has been a use and claim of right of use to the said roadway, adverse to the right of the owner of the fee, and said use has been exclusive, continuous, hostile, open and notorious for a period greatly in excess of twenty years.

'3. The said roadway is the only practicable means of ingress and egress to their residence and lands available to Complainants.

'4. Respondents have failed to meet the burden of proof necessary to the establishment of a recovery of affirmative relief requested by them in their Answer and Cross-Complaint.'

The main thrust of appellants' argument in brief is that the use of the road was permissive, that the use was not adverse and it was not exclusive. Appellants rely on West v. West, 252 Ala. 296, 40 So.2d 873, where we cited numerous authorities for the principle that a private easement is not established merely by the use of the lands of another for a period of twenty years or more. Such use must have been adverse to the owner of the premises over which the easement is claimed, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner. We also noted that we follow the minority rule applicable to private easements in that there must be evidence that the use was adverse to the owner; that such nature of use will not be presumed, but the evidence must be such that its adverse nature is a proper inference.

Appellants contend that the use of the road by appellees and their predecessors in title was neither under claim of right or adverse. The evidence, or the inferences therefrom, reveal that for more than twenty years, the...