Carter v. Walker

• Decision Date: 23 April 1914
• Docket Number: 679
• Citation: 65 So. 170,186 Ala. 140
• Parties: CARTER v. WALKER.
• Court: Alabama Supreme Court

65 So. 170

186 Ala. 140

CARTER v. WALKER.

No. 679

Supreme Court of Alabama

April 23, 1914

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Action by Mittie Carter against James Walker. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Samuel B. Stern, of Birmingham, for appellant.

W.K Terry, of Birmingham, for appellee.

SOMERVILLE J.

The plaintiff sues on account of personal injuries caused by a wire which defendant stretched across a certain alleged public highway.

There was abundant evidence to show that the way in question had been used by the general public continuously and under claim of right for more than 20 years, and the evidence to this effect would have been sufficient to support a finding by the jury that the way had become a public highway by prescription, as against the owner of the land. Rosser v. Bunn, 66 Ala. 89; West. Ry. of Ala. v. A.G.T.R.R. Co., 95 Ala. 272, 11 So. 483, 17 L.R.A. 474; Cochran v. Purser, 152 Ala 354, 44 So. 579.

There was, however, no direct evidence that the title to the roadway had ever passed out of the United States government and, upon the theory that prescription does not run against the government, the trial court held that the public use for the prescriptive period was no evidence of public right, and hence that the roadway was not a public highway. In accordance with this view, the jury were instructed to find for the defendant.

Although neither limitation nor prescription runs against the United States government to the impairment of its title to property, yet "a grant will be presumed upon proof of an adverse, exclusive and uninterrupted possession for 20 years, and that such rule will be applied as a presumptio juris et de jure, whenever by possibility a right may be acquired in any manner known to the law." United States v. Chavez, 175 U.S. 509, 522, 20 Sup.Ct. 159, 163 (44 L.Ed. 255). Of course, this presumption is rebuttable in favor of the government or its grantees.

In this state there is no presumption as against the occupant of land that the title remains in the government; and, where that fact is material, the burden of showing it is upon him who affirms it. Dodge v. Irvington Land Co., 158 Ala. 91, 48 So. 383, 22 L.R.A. (N.S.) 1100; People v. Rector of Trinity Church, 22 N.Y. 44.

Indeed, where the land in question is but a small tract or strip, within or adjacent to an old and populous community, itself and the adjacent lands being occupied or in use, this may be sufficient evidence prima facie, that the title to such tract has passed out of the government and become a subject of private ownership.

While the public use of a roadway under claim of right is not technically an adverse possession of the way, it is an adverse possession of the easement therein; and, so far as concerns the generation of the protective presumptions above stated, it must be regarded as the substantial equivalent of an actual possession of the land. Certainly there can be no logical distinction between them. Elliott on Roads and Streets, § 180, p. 193.

And it has been held, correctly, we think, 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. Toof v. City of Decatur, 19 Ill.App. 207 (cited with approval in Chicago v. Chicago, etc., R. Co., 152 Ill. 561, 38 N.E. 768, 773).

The principles we have stated are not at all in conflict with any of the former decisions of this court, which simply hold, in effect, that, where title appears to have been in the government during the period of prescription, the prescription does not run, and is, of course, not effective against one who claims the land through government grant. Cross v. State, 147 Ala. 125, 41 So. 875; Tutwiler v. Kendall, 21 So. 332. ^[1]

The...