Wallace v. Putman

• Decision Date: 26 September 1986
• Parties: Willie WALLACE and Virginia Wallace v. D.L. PUTMAN. 84-816.
• Court: Alabama Supreme Court

Page 1072

495 So.2d 1072

Willie WALLACE and Virginia Wallace v. D.L. PUTMAN.

84-816.

Supreme Court of Alabama.

Sept. 26, 1986.

J. Allen Brinkley, Daniel F. Aldridge of Brinkley & Ford, Huntsville, for appellants.

Charles E. Richardson III, Michael I. Spearing of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellee.

SHORES, Justice.

This appeal arose out of a boundary line dispute over land located in Madison County.

The Wallaces filed a complaint with the circuit court to quiet title to the property in question, declare the boundary lines of the parties, and determine whether they had by prescription acquired the right to use a paved road running along the boundary. After hearing ore tenus evidence and viewing the property personally, the court ruled in favor of the defendant, D.L. Putman.

Putman acquired a 36-acre tract of rural property in 1983. This property is bordered on its eastern side by property owned by Willie and Virginia Wallace since 1965. According to their respective deeds, the common boundary line should be the north-south center line of Section 4, Township 3 South, Range 2 West.

The Wallaces contend, however, that the boundary is farther to the west, specifically to the center line of Pettus Road. Their contention is in direct conflict with the language of their deeds, which draws the road in controversy entirely within the boundaries of Putman's land. The Wallaces claim that adverse possession and an agreement between the coterminous landowners justify expansion beyond the reach of their deed. The Wallaces alternatively claim that the roadway in question was built by Madison County, that it is a public road, and that they have acquired the right to use the roadway by prescription.

The following diagram depicts the lands in question and should aid in understanding the parties' claims:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In its findings of fact the trial court held that Putman had not acquired the property by adverse possession and there was no understanding or agreement between the Wallaces and D.L. Putman's predecessors in title to accept the center of Pettus Road as the property line.

With respect to the Wallaces' other claims, the court decreed:

"[T]he roadway in question was prepared, graded and graveled by employees of the defendant using the defendant's equipment. The gravel used was purchased from the County and paid for by the defendant. The paving on the roadway in question was purchased from Shelby Construction Company and paid for by the defendant. The roadway in question lies entirely on the lands of the defendant as evidenced by a survey prepared at the plaintiffs' request....

"... The testimony generally shows that in the early part of this century there was a road of some sort extending north from Nick Davis Road to Capshaw Mountain. The primary use of the road was by people who either lived on the lands, worked the lands or visited relatives who lived on the lands. The secondary use of this road was an occasional or intermittent use by hunters, hikers and berry pickers. In order for private lands to become a public roadway by prescription, the roadway must be open, defined and in continuous adverse use by the public under a claim of right, without let or hindrance for a period of 20 uninterrupted years. Also, where the alleged roadway runs through wooded or unimproved lands, it takes clear and convincing proof to overcome the presumption that the use of the land was merely permissive. It is common knowledge that roads in the country are frequently used as a matter of convenience without any intention on the part of the landowners to dedicate or give up the lands for public use. The evidence in this case tends to show a permissive use by the landowners. Practically all of the witnesses who testified indicated that they felt they had permission to use the roads for hunting, hiking and picking blackberries. The people who lived in this area during the time in question used each other's lands for these purposes without asking permission. It was generally understood during that period of time that there was no objection on the part of the landowners to such use. The Court can find no proof of a distinct claim by the people who used the road to any right adverse to the owners. The evidence in this cause is more consistent with permissive use rather than adverse use. The evidence also reveals that gates and fences have been placed across the alleged roadway from time to time during its existence and that the area had been used as a pasture for cattle.

"The most compelling evidence concerning this matter is the aerial photographs taken of the area dating from 1944 through 1981. These photographs show fields and woods in the area in question from 1944 through 1968, a period in excess of 20 years. Testimony supports a finding that, even if the roadway had at one time been considered a public roadway during the 1910's, '20's, and '30's, it was effectively abandoned in the early 1940's and not reopened in any form or fashion until 1968. In 1968 the County graded the road from Nick Davis Road to the TVA easement. At that time Mr. Sidney Neill had purchased a four-acre tract adjoining the plaintiffs' and defendant's property and lying on a portion of the roadway. The County graveled the graded road to Mr. Neill's property; however, it was not graveled beyond his property to the area in question. Following this, the area in question was fenced by Mr. Neill and was again reclaimed by nature with trees, vines and briars taking over the land. Also, cattle were allowed to graze in the area. It is the finding of this Court that the portion of the alleged roadway in dispute in this case is not and was not a public road.

"The Court also finds that the plaintiffs have not acquired the right to use the roadway by prescription. In order to acquire an easement by prescription, certain requirements must be met. First, there must be two distinct tenements, one being dominant to which the right belongs and one being servient upon which the obligation rests. The lands of the plaintiffs in this case are bounded on the south by Nick Davis Road, a public road, for a distance of 1300 feet. Their lands are bounded on the west side by an extension of Pettus Road for a distance of approximately 1731 feet. There is no essential need to cross the lands of the defendant to gain access to the plaintiffs' lands. Additionally, in order to create an easement by prescription, there must be a continuous, open, hostile and adverse user for more than 20 years. The plaintiffs have only owned this land since 1965. This lawsuit was filed in 1984. It is not disputed that the area in question was fenced and gates were placed across the area in question during the plaintiffs' ownership and that they were allowed by the landowners to go upon their property for the purpose of repairing their fences. This constitutes a permissive use rather than an adverse use and would not...