Opinion
SC 835.
April 3, 1975.
Appeal from the Circuit Court, Barbour County, Jack W. Wallace, J.
Billy J. Sheffield, Dothan, for appellants.
Continuous use of another's property, where a private easement is claimed by prescription, does not raise a presumption of claim of right and of itself make a prima facie case of a user adverse to the owner. West v. West, 252 Ala. 296, 40 So.2d 873. A way used in common with the owners of the fee does not amount to adverse possession and establish a prescriptive right. Drummond v. Franck, 252 Ala. 474, 41 So.2d 268. A user of a right which is merely permissive, tolerated by the owner or held under an implied license from him, is revocable at pleasure and will never ripen into a title by prescription. Jesse French Piano Co. v. Forbes et al., 129 Ala. 471, 29 So. 683. Whether one claims by adverse possession or by prescription, a claimant must show dominion over the estate to the same degree under either mode of claim. Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289. A claim of adverse possession to establish a prescriptive right must be proved by clear and convincing evidence. Turnipseed v. Moseley, 248 Ala. 340, 27 So.2d 483. Proof of adverse user sufficient to create a prescriptive right to a passageway traversing unenclosed lands must be much more convincing than the proof to establish such a right over inclosed lands. 25 Am.Jur.2d, Section 91, page 498.
Jimmy S. Calton, Eufaula, for appellees.
If a road, which was started in such a manner as to make the user adverse and exclusive, is afterwards enjoyed in common with the public, and/or the owner of the land, the user does not lose its exclusive character as the result of the joinder of the public therein. Belcher v. Belcher, 284 Ala. 254, 224 So.2d 613. A reviewing court will not weigh evidence as to any fact found by the trial court, but if there is any evidence, or any reasonable inference from evidence, to support the conclusions of the trial court, the judgment will not be disturbed. Simmons v. F. W. Dodge Corp., 270 Ala. 616, 120 So.2d 921. Where the trial court, with the consent of the parties, personally inspects the premises before making its findings of fact, the Supreme Court should be most reluctant to disturb its findings. Pardue v. Citizens Bank Trust Co., 287 Ala. 50, 247 So.2d 368; Crawford v. Tucker, 258 Ala. 658, 64 So.2d 411; Christian v. Reed, 265 Ala. 533, 92 So.2d 881. An easement may be created by prescription by virtue of continuous, open, hostile and adverse use for more than twenty (20) years. Stanley v. Barclay, 253 Ala. 650, 46 So.2d 210; Restatement of the Law of Property, "Servitudes", Division V, Sections 457 458.
This is an appeal from a final judgment for plaintiffs below, William and Alice Richards, against defendants below, C. R. and Claudie Eubanks. The parties to the action are adjoining property owners. The complaint sought relief in the form of a declaration vesting plaintiffs with the right to a perpetual easement for roadway across lands of defendants; the quieting of title to that right and enjoining defendants from obstructing the roadway along that easement. The right to relief was based upon the principle of law stated in the representative cases of Loveman v. Lay, 271 Ala. 385, 124 So.2d 93, and Hill v. Wing, 193 Ala. 312, 69 So. 445:
"* * * [W]here a right of way or other easement is claimed by private persons upon the principle of prescription, the user and enjoyment * * * must have been adverse to the owner of the estate from which the easement is claimed under a claim of right, exclusive, continuous and uninterrupted and with the actual or presumed knowledge of the owner.", Loveman, supra,
for the period of time required by law. The defense, to the claim of plaintiffs, was that use of the roadway over lands of defendants was by permission of defendants. The trial court, after hearing testimony from more than twenty witnesses as to the existence and ownership of the easement, pro and con; after viewing documentary exhibits; after visiting and viewing the property and roadway over the disputed easement, made various findings:
"* * * The Plaintiffs and their predecessors in title, their tenants, neighbors, and friends have continuously used said road since 1899 without asking permission from any person.
"* * * That Defendants have known the Plaintiffs for many years and knew that they were using said road but nevertheless, never told the Plaintiffs, or for that fact, never told anybody, that they had to have permission to use said road or that they were claiming that the use of said road was permissive; that Plaintiffs and members of their family have used said road, which is within sight of Defendants' residence, openly, notoriously, hostilely, adversely, and under claim of right since 1899 * * * that over the years Plaintiffs have had bauxite men and timber men use said road to carry in large equipment and to haul out timber from Plaintiffs' land without objection from Defendants * * * and that Plaintiffs have trimmed over-hanging tree limbs and branches and have made repairs and improvements to the road bed."
Upon these findings the court rendered judgment for plaintiffs. That judgment decreed that plaintiffs were owners of a perpetual easement for roadway across lands of the defendants (The easement was given an accurate description otherwise than by metes and bounds). The judgment also enjoined defendants from obstructing or interfering in any way with plaintiffs' easement.
Our approach to this case is governed by ARCP 52(a):
"* * * Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. * * *"
The findings not shown to be clearly erroneous they will not be disturbed. ARCP 52(a).
The conclusions of the trial judge, manifest in his judgment, were based on findings determined from evidence which was conflicting. The judgment is fairly supported by credible evidence. Those conclusions were not clearly erroneous or manifestly unjust. The trial judge committed no error in the trial of this action which approaches that requiring reversal. Therefore the judgment is due to be affirmed.
Affirmed.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.