Cotton v. May
Decision Date | 19 September 1974 |
Parties | Minnie COTTON et al., etc. v. Ramona G. MAY et al. SC 756. |
Court | Alabama Supreme Court |
J. Paul Lowery, Montgomery, for appellants.
D. N. Hamilton, Montgomery, for appellees.
This appeal is from a decree in a declaratory judgment action in which plaintiffs-appellants sought to enjoin defendants from blocking a roadway and to have the roadway declared a private easement.
Appellants' bill averred that they owned a farm of 160 acres and appellees owned a tract of land adjoining theirs; that they and their predecessors in title had had a roadway easement over appellees' land for more than twenty-five years; that appellees had blocked the roadway and forbade appellants to repair it; and that appellants were landlocked and had no way to get to a public road except across appellees' land. The prayer asked that the roadway be opened, that the appellees be perpetually enjoined from obstructing it, and that the easement over the lands be declared to be perpetual.
Fourteen witnesses were heard by the trial court and the decree, entered November 6, 1973, reads in part:
real property was not adverse to the owners of said property, rather, that such use was by permission of the owners.
Appellants' case on appeal rests solely on their claim that they and their predecessors in title have been in continuous adverse use of the road for a sufficient length of time to create a private easement by prescription.
Much of appellants' argument is based on the testimony of numerous witnesses that they never had 'to ask permission' to use the roadway. This approach fails to meet the requirements for the acquiring of a private easement by prescription in this state.
Admittedly, there is a conflict of authority as to whether the use of a claimed easement under prescriptive right raises a presumption of permissive user. See Annotation 170 ALR 776. The annotation cites many states as following the majority rule that the breach of possession is a wrong and 'it is presumed that no man would suffer another to enjoy an easement in his land if he could help it, * * *.'
The minority rule is expressed on page 793 of the annotation as follows:
Alabama follows the minority rule. This is pointed out in West v. West, 252 Ala. 296, 40 So.2d 873. Four principles stated or quoted in West are applicable here:
1.
2. To establish a private easement, the prima facie sufficiency of the proof is clearly different from that necessary to establish a dedication to the public use.
3. To create such an easement, there must be evidence that the use was adverse to the owner. Such nature of use will not be presumed, but evidence must be such that its adverse nature is a proper inference.
4. The presumption is that the user is permissive rather than adverse, unless it is shown otherwise.
Another principle is that a permissive possession does not ripen into...
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