Menefee v. Lowery
| Decision Date | 21 September 1979 |
| Citation | 375 So.2d 793 |
| Parties | Nova Sullivan MENEFEE and Ruby Sullivan Sheets v. Fred W. LOWERY and Gladys B. Lowery. 78-744. |
| Court | Alabama Supreme Court |
Kenneth B. Taylor, Jr., Taylor & Taylor, Russellville, for appellants.
Robert I. Rogers, Jr., Bedford, Bedford & Rogers, Russellville, for appellees.
This is an appeal from an adverse judgment in appellants' suit seeking to enjoin appellees from obstructing what appellants contend is a public road. The trial court held that the appellants had not introduced evidence sufficient to support the allegations of their complaint and found for appellees. We affirm.
Appellants, Nova Sullivan Menefee and Ruby Sullivan Sheets, are the heirs and successors in interest to property owned by their father. The appellees Lowerys own land on all sides of Mrs. Menefee, but their lands do not completely surround appellants' property. This dispute arose over two roadways that cross the Lowerys' property and intersect public Highway 24. (These roadways are shown as dashed lines on the plat appended to this opinion.) Appellants sought to prove that there had been, for twenty years or more, open and continuous use of the roadways sufficient to create dedication or an easement by prescription. The appellees Lowery contend that the roadways had always been private and were used by the Sullivans (appellants' predecessors in title) and by the Chenaults (appellees-Lowerys' predecessors in title).
The trial court heard substantial evidence Ore tenus. While the evidence was contradictory and confusing, it tended to establish that the Chenaults built a home on their property about 1926, and that in 1926 Robert L. Sullivan, father of appellants acquired appellants' property. There was a footpath that went across the Chenaults' property to an abandoned home of the Chenaults' predecessors in title and on to the main highway. School children used this footpath as a shortcut to school as early as 1926 when the Chenaults built their home. The Chenaults did not tell the children not to use the path.
The Chenaults then improved the footpath and cut a new roadway along their property line east toward the main highway. This improvement was apparently accomplished within five years after the Chenaults built their home. Although there was some testimony that anyone could use the roadways, the evidence tends to show that only the Chenaults and the Sullivans or people visiting them used these paths or roadways.
The testimony is confusing about the condition of the roads from 1940 to date. Apparently the bridges constructed on the paths steadily deteriorated without repair until they were unpassable for motor vehicles and even dangerous for pedestrians. The bridges remained in that condition until the appellees-Lowerys bought the Chenault property in 1967 and built new bridges on the roadways. From that time on, the roadways were used only by the Lowerys and by Hobson McKinney, appellants' tenant, or by people visiting them.
The Lowerys constructed fences on their property line in 1975 which blocked the entrances to the two roadways in dispute. Appellants then brought suit to enjoin the Lowerys from obstructing the roadways.
Appellants' contention that an easement appurtenant had attached by prescription is without merit in that they neither pleaded nor proved that they or their predecessors at any time made such claim of right to the roadways. A private easement is not established merely by use of 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...
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