Hanks v. Spann

• Decision Date: 09 October 2009
• Docket Number: 2080211.
• Citation: 33 So.3d 1234
• Parties: Louis B. HANKS, Margaret C. Hanks, and Tommy F. Clementv.Billy Mack SPANN.
• Court: Alabama Court of Civil Appeals

33 So.3d 1234

Louis B. HANKS, Margaret C. Hanks, and Tommy F. Clementv.Billy Mack SPANN.

2080211.

Court of Civil Appeals of Alabama.

Aug. 21, 2009.

Rehearing Denied Oct. 9, 2009.

[33 So.3d 1234 1235]

Frances R. Clement, Montgomery, for appellants.

Allen Grocholski, Fayette, for appellee.

THOMAS, Judge.

This is the second time these parties have been before this court. Louis B. Hanks, Margaret C. Hanks, and Tommy F. Clement own lands in Marion County that are divided by an old road, 10 feet wide, referred to in the testimony as a “field road,” a “logging road,” or a “wagon road.” The deeds of the Hankses and Clement describe the road as the boundary between their properties. Billy Mack Spann owns land at the southwest end of the road. Spann and his predecessors in title had used the road without objection

[33 So.3d 1234 1236]

from the Hankses and Clement, or their predecessors in title, for more than 20 years. When Spann opened a fill-dirt pit on his property and began hauling dirt over the road, however, the Hankses and Clement sued Spann, seeking an order declaring that Spann had no right or interest in the road and enjoining Spann from using the road. Spann answered, asserting that he had an easement by prescription and an easement by necessity upon the road. Following a bench trial, the Marion Circuit Court, Judge Bobby R. Aderholt, determined that the Hankses and Clement had failed to prove that they owned the road separating their properties and that Spann had a prescriptive easement over the road.

The Hankses and Clement appealed to the Alabama Supreme Court, which transferred that appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975. In Hanks v. Spann, 990 So.2d 399 (Ala.Civ.App.2008), this court reversed the judgment, holding that Judge Aderholt had erred by granting Spann a prescriptive easement over the road without determining who owned the road. We remanded the cause with instructions to “(1) determine the owner or owners of the logging road; (2) determine whether there exists an easement by prescription and/or necessity; and (3) if the court determines that an easement by prescription and/or necessity exists, determine whether the scope of the easement has been overburdened.” 990 So.2d at 403 (footnote omitted).

On remand, the case was assigned to Circuit Judge Talmage Lee Carter. Judge Carter reviewed the trial transcript and the exhibits that had been admitted in the proceeding tried before Judge Aderholt, as well as briefs of the parties, and he entered a judgment on October 20, 2008, determining that the Hankses own to the center line on the south side of the road; that Clement owns to the center line on the north side of the road; that Spann has a prescriptive easement over the road; and that Spann has not overburdened the scope of the easement. The Hankses and Clement filed a postjudgment motion, alleging that the evidence was insufficient to support Judge Carter's judgment and that Judge Carter had incorrectly applied the law to the facts. Following the denial of that motion, the Hankses and Clement appealed to the supreme court, which again transferred the appeal to this court pursuant to § 12-2-7(6). We affirm in part, reverse in part, and remand with instructions.

Factual Background

The following evidence was undisputed. The road in question runs over unimproved farm land and timberland. For more than 20 years, Spann and his predecessors in title, as well as other farmers and nearby property owners, had used the road with the knowledge of and without objection from the Hankses and Clement or their predecessors in title. Spann presented nine witnesses who testified that they had used the road for years without seeking permission from anyone. Danny Lou Spann, Billy Mack Spann's 75-year-old sister, testified that she had used the road all of her life; she remembered someone's stopping her on the road to tell her that President Franklin D. Roosevelt had died. Seventy-four-year-old William Burleson said that he had used the road to haul corn and cotton from the fields. He said that he did not think anyone minded his using the road and that, “[if] they did, they didn't say anything about it.”

Clement testified that he and the Hankses owned the road and that they did not mind if others used it. Louis Hanks agreed that he knew Spann and others had been using the road for years and that he

[33 So.3d 1234 1237]

did not mind. Before Spann obtained his property, the use of the road had been confined to recreational or agricultural purposes, such as hunting, riding horses and bicycles, picking blackberries, feeding wild animals, and gaining access to gardens, farms, and individuals who were working in the fields. Sometime in the 1990s, Spann had cut timber on his property and had used the road to haul his timber out, at which time he had improved the road by putting down gravel, smoothing the road, and installing a culvert to keep the road from washing away in a low place. Shortly before the Hankses and Clement sued Spann in 2005, Spann had begun to sell top soil from a dirt pit on his property and had used the road to haul dirt to and from the pit.

Standard of Review

Because Judge Carter reviewed the record of the bench trial conducted by Judge Aderholt and heard no oral testimony, the ore tenus rule does not apply to our review of the judgment he rendered. See Ex parte Horn, 718 So.2d 694, 705 (Ala.1998). We review de novo Judge Carter's conclusions of law and his application of law to the facts. See Ex parte J.E., 1 So.3d 1002, 1008 (Ala.2008).

Prescriptive Easement

The evidence was undisputed that the road in question runs through unimproved land, that it has been used by local farmers and property owners, including Spann and his predecessors in title, for more than 20 years, that none of the users had sought the permission of the owners before they used the road, and that none of the users had been asked by the owners to discontinue their use of the road. During the trial of the case before Judge Aderholt in 2006, the following occurred on cross-examination of Spann:

“Q. [By Mr. Vinson, counsel for the Hankses and Clement]: So [the Hankses and Clement, or their predecessors in title,] didn't [mind] you using [the road] or your daddy using it. It was permissive?

“MR. GROCHOLSKI [counsel for Spann]: I object to that. It is not permissive unless he testified he got express permission.

“THE COURT: Sustained.”

Judge Aderholt's ruling on the objection was incorrect because it is settled law that Spann's use of the road was presumed to be permissive. See Ford v. Alabama By-Products Corp., 392 So.2d 217 (Ala.1980):

“ ‘A private easement ^[1] 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.’ West v. West, 252 Ala. 296, 40 So.2d 873 (1949). There is a presumption that the user is permissive rather than adverse unless shown otherwise. Also, such a permissive use does not ripen into a prescriptive or adverse use unless there has been such a repudiation of the permissive use as to afford notice of an adverse claim. Cotton v. May, 293 Ala. 212, 301 So.2d 168 (1974).”

[33 So.3d 1234 1238]

392 So.2d at 219. Cf.

Cotton v. May, 293 Ala. 212, 214, 301 So.2d 168, 169 (1974) (rejecting appellants' “argument [that they had a prescriptive easement in a roadway] ... based on the testimony of numerous witnesses that they never had ‘to ask permission’ to use the roadway” because that “approach fail[ed] to meet the requirements for the acquiring of a private easement by prescription in this state”). To rebut the presumption that the use of a road is permissive, the user claiming a prescriptive easement has the burden of showing that his or her use was adverse to that of the owner for the 20-year prescriptive period. Bull v. Salsman, 435 So.2d 27, 29 (Ala.1983).

Judge Aderholt's belief that the use of the road could not be permissive unless the user had received the owner's express permission undoubtedly led him into the error demonstrated in the following portion of his February 23, 2007, judgment:

“Plaintiffs claim that the defendant asked for permission since the year 2000 to use the road to haul timber out. Defendant denied this and stated that he did discuss improving, or doing some work on, the road and putting a gate and lock on it with Joel Clement, the father of one of the plaintiffs and that [Joel Clement] stated that that would be no problem.

“ That was the only evidence that the use of the road by defendant was permissive. But that is immaterial in this case because the evidence is overwhelming and uncontroverted that the defendant and his predecessors in title had been using this road for twenty or more years, before the plaintiffs ever acquired title to their property without the permission of anyone.”

(Emphasis added.)

“[A]n easement by prescription ‘ “is not established merely by the use of the lands of another for a period of twenty years or more.” ’ ” Aman v. Gilley, [Ms. 2031166, September 2, 2005] --- So.3d ----, ---- (Ala.Civ.App.2005) (quoting Cotton v. May, 293 Ala. at 214-15, 301 So.2d at 170, quoting in turn West v. West, 252 Ala. 296, 297-98, 40 So.2d 873, 874 (1949)). Spann presented no evidence indicating that his use of the road was anything other than permissive.

“ ‘[A] permissive occupant cannot change his possession into adverse title no matter how long possession may be continued, in the absence of a clear, positive and continuous disclaimer and disavowal of the title of the true owner brought home to the latter's knowledge; there must be either actual notice of the hostile claim or acts or declarations of hostility so manifest and notorious that actual notice will be presumed in order to change a permissive or otherwise

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