Rel: June 6, 2025
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA OCTOBER TERM, 2024-2025
_________________________
SC-2024-0678 _________________________
EBSCO Industries, Inc.
v.
Michael R. Ballard, Ballard Contractors, Inc., and MRB Farms, LLC
Appeal from Tuscaloosa Circuit Court (CV-22-900707)
SELLERS, Justice.
EBSCO Industries, Inc., appeals from a judgment of the Tuscaloosa
Circuit Court ("the trial court") holding that Michael R. Ballard SC-2024-0678
("Ballard") and two entities owned and operated by Ballard -- Ballard
Contractors, Inc., and MRB Farms, LLC -- acquired land situated in
Tuscaloosa County by adverse possession. We reverse and remand.
I. Facts
This land dispute involves an approximately 5.5-acre parcel of
property that EBSCO owned and leased to Ballard ("the disputed
parcel"). See the appendix to this opinion (showing the disputed parcel
that lies between the "fence claimed by Ballard as property line" and the
"boundary as shown on previous Herndon Hicks survey using fences of
long standing.") The parties own adjoining properties. EBSCO purchased
its property ("the EBSCO property") in 1988. At that time, a survey was
not conducted, but the deed to the EBSCO property contained a legal
description of that property. On March 1, 1990, EBSCO began leasing
240 acres of its property to Ballard for hunting purposes. A map attached
to the lease included a shaded area suggesting that the lease included
the disputed parcel. In relevant part, the lease prohibited Ballard from
cutting timber on the leased property and reserved "[c]oon hunting"
rights "exclusively to Mr. Bob Owens only." The original lease term
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expired on February 28, 1991. However, the parties renewed the lease
each year thereafter until February 2022.
In 1992, Ballard purchased the property located to the west of the
EBSCO property ("the Ballard property"). Although Ballard did not have
the Ballard property surveyed, he believed that a partial fence running
north and south on the EBSCO property ("the subject fence") was the
boundary line between the Ballard property and the EBSCO property.
The subject fence does not join with any other fence to the north; rather,
it stops running at a random point. Both properties are bordered on the
south by a public road known as River Bend Farm Road. In 2016,
Herndon, Hicks & Associates, Inc. ("Herndon"), conducted a survey of the
EBSCO property that identified the western boundary line of the EBSCO
property, separating it from the Ballard property. After Herndon flagged
or marked that western boundary line, Rodney Dyer, an employee of
EBSCO, painted the line with yellow paint. In late 2021, Ballard began
the construction of a hog farm on the disputed parcel. At that time, he
noticed yellow flags and paint on some of the pine trees. Although
Ballard knew that EBSCO used yellow paint to mark its boundaries, he
never said anything to EBSCO about the boundary markings. Around
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that same time, Dyer went onto the EBSCO property to repaint the
western boundary line, at which time he noticed the hog farm. In March
2022, EBSCO sent Ballard a letter advising Ballard to "cease and desist"
from being on the EBSCO property other than to remove the hog farm
from the property. Ballard refused to remove the hog farm, claiming that
he had acquired ownership of the disputed parcel through adverse
possession by cutting timber from the disputed parcel, among other
things. EBSCO sent Ballard a second letter advising him that the prior
lease had expired on February 28, 2022, and that a renewal lease would
not be offered unless and until the controversy regarding ownership of
the disputed parcel was resolved. As a result of the dispute, Herndon
conducted another survey of the EBSCO property ("the 2022 survey"),
which confirmed the same western boundary line. As indicated, the
disputed parcel lies between the subject fence and the western boundary
line.
In August 2022, EBSCO commenced an action against Ballard,
asserting, among other things, claims of trespass, ejectment, and
wrongful cutting of timber. Ballard answered, and MRB Farms filed a
counterclaim, asserting that it had acquired ownership of the disputed
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parcel through adverse possession; MRB Farms asserted that it had
acquired title to the Ballard property from Ballard Contractors. EBSCO
then amended its complaint to name Ballard, Ballard Contractors, and
MRB Farms ("the Ballard parties") as defendants. Following a bench
trial, the trial court entered a final judgment concluding that EBSCO
held legal title to the disputed parcel at the time Ballard purchased the
Ballard property. The trial court specifically found that EBSCO held
legal title to the disputed parcel based on the undisputed testimony
offered by EBSCO indicating that it had paid taxes on the parcel, the fact
that the 2022 Herndon survey identified the western boundary line of the
EBSCO property as being located west of the subject fence, and the
testimony of another surveyor opining that the western boundary line
established by the 2022 Herndon survey was correct. However, the trial
court further determined that the Ballard parties had acquired
ownership of the disputed parcel through adverse possession as early as
2012. Specifically, the trial court found (1) that, in 1992, Ballard had
contracted with Alabama Power Company, allowing the company to
increase the size of a power line within the disputed parcel; (2) that, in
2008, Ballard had harvested some trees he had planted within the
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disputed parcel; and (3) that Ballard had replaced an existing gate on the
disputed parcel without giving EBSCO a key. EBSCO filed a
postjudgment motion to alter, amend, or vacate the judgment, which was
denied. This appeal followed.
II. Standard of Review
"The ore tenus rule affords a presumption of correctness to a trial
court's findings of fact based on ore tenus evidence, and the judgment
based on those findings will not be disturbed unless those findings are
clearly erroneous and against the great weight of the evidence." Allsopp
v. Bolding, 86 So. 3d 952, 958 (Ala. 2011). "The presumption of
correctness is particularly strong in adverse possession cases, because it
is difficult for an appellate court to review the evidence in such cases."
Rice v. McGinnis, 653 So. 2d 950, 950 (Ala. 1995). However, the ore tenus
standard of review has no application when the trial court is shown to
have improperly applied the law to the facts. Espinoza v. Rudolph, 46
So. 3d 403, 412 (Ala. 2010). Rather, this Court reviews a trial court's
conclusions of law and its application of law to the facts under a de novo
standard of review. Id.
III. Discussion
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On appeal, EBSCO contends that the trial court erred in finding
that the Ballard parties owned the disputed parcel through adverse
possession. Because this case concerns adverse possession by
prescription, the Ballard parties were required to prove that their
possession of the disputed parcel was "actual, exclusive, open, notorious
and hostile … under a claim of right for a period of twenty years." Kerlin
v. Tensaw Land & Timber Co., 390 So. 2d 616, 618 (Ala. 1980). 1 "When
a party claims title to land by way of adverse possession, the presumption
is in favor of the record owner, and a heavy burden of proof rests on the
one claiming by adverse possession." Id. at 619. In its judgment, the trial
court concluded that EBSCO held legal title to the disputed parcel. 2
1Because the disputed parcel in this case is approximately 5.5 acres,
the case is an adverse-possession case rather than a boundary-line dispute. See Buckner v. Hosch, 987 So. 2d 1149, 1152 (Ala. Civ. App. 2007) (holding that when a coterminous landowner claims to have acquired all or a significant portion of another coterminous landowner's land by virtue of adverse possession, the case is an adverse-possession case rather than a boundary-line dispute); and McCallister v. Jones, 432 So. 2d 489, 492 (Ala. 1983) (holding that, when one coterminous landowner claimed to have acquired ownership of a three- to five-acre portion of the other coterminous landowner's land, the case was an adverse-possession case, not a boundary-line dispute).
2The Ballard parties assert for the first time on appeal that the
lease executed in 1990 and renewed each year thereafter until 2022 is ambiguous and that the disputed parcel is not within the scope of the 7 SC-2024-0678
Because EBSCO held legal title to the disputed parcel, Ballard's use of
the parcel under the lease was merely permissive and, generally, could
not ripen into adverse possession. See Moss v. Woodrow Reynolds & Son
Timber Co., 592 So. 2d 1029, 1031 (Ala. 1992) (noting that, "[g]enerally,
possession of land entered into with the permission of the owner will not
ripen into title"). "To change a permissive or otherwise nonhostile
possession into one that is hostile, 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." White v. Williams, 260
Ala. 182, 187, 69 So. 2d 847, 851 (1954). The trial court noted that it was
undisputed that Ballard had not given EBSCO actual notice of his
disavowal of EBSCO's rightful title. Nonetheless, the trial court
concluded that the acts that Ballard had committed on the disputed
parcel were so hostile and notorious that actual notice could be presumed.
We need not reach a determination as to whether the acts Ballard
committed on the disputed parcel were hostile or so notorious as to make
lease. It is well settled that an appellate court will not consider an argument presented for the first time on appeal. See ITEC, Inc. v. Automated Precision, Inc., 623 So. 2d 1139, 1140 (Ala. 1993) ("Issues not raised before the trial court will not be considered for the first time on appeal."). 8 SC-2024-0678
actual notice of those acts presumed. As previously noted, approximately
two years before Ballard purchased the property adjoining the EBSCO
property, he entered into a lease with EBSCO to hunt on the EBSCO
property. The leased property included the disputed parcel. Because
Ballard paid rent for the leased property from March 1990 until February
2022, his use of the leased property was merely permissive and could not,
as a matter of law, have been hostile until March 2022 at the earliest. It
is undisputed that Ballard performed no acts on the disputed parcel after
February 2022. See Williams v. White, 207 So. 3d 59, 65 (Ala. Civ. App.
2016) ("Because White paid rent for the leased property until at least
2003, his possession of the leased property could not, as a matter of law,
have been hostile until 2003, at the earliest."); Calhoun v. Smith, 387 So.
2d 821, 824 (Ala. 1980) (noting that "the prescribed period of time for
adverse possession will not begin to run until notice of the adverse claim,
or hostility, has been brought home to the true owner"); and Stewart v.
Childress, 269 Ala. 87, 93, 111 So. 2d 8, 13 (1959) ("Limitations begin to
run from the date of notice of hostility but are not operative before
hostility is shown."). Thus, the trial court's finding that the Ballard
parties owned the disputed parcel through adverse possession as early as
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2012 is plainly and palpably wrong. A lease establishes land use by a
tenant with the permission of the landlord. It is impossible for property
subject to a lease to be acquired by adverse possession until after the
leasehold interest terminates. Permissive use in and of itself cannot be
hostile regardless of whether provisions of a lease are breached. Here, as
long as Ballard continued to pay rent, his use of the disputed parcel was
permissive and could not ripen into a possessory interest through adverse
possession. Any acts of hostility could be counted toward a claim of
adverse possession only after the lease terminated. Accordingly, the
judgment awarding the Ballard parties ownership of the disputed parcel
is reversed, and the cause is remanded for proceedings consistent with
this opinion.
IV. Conclusion
For the reasons set forth above, we reverse the judgment of the trial
court awarding the Ballard parties ownership of the disputed parcel.
REVERSED AND REMANDED.
Wise, Mendheim, and McCool, JJ., concur.
Sellers, J., concurs specially, with opinion.
10 SC-2024-0678
Cook, J., concurs in part and concurs in the result, with opinion.
Shaw, J., concurs in the result, with opinion, which Stewart, C.J.,
and Lewis, J., join.
Bryan, J., concurs in the result.
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SELLERS, Justice (concurring specially).
Although I am the author of the main opinion, I write specially to
note that, over the last several years, this Court has reviewed and issued
a number of decisions in cases in which parties purchasing real property
failed to obtain surveys, relying instead on an "assumed" boundary line
based on any number of tangible markings, fence lines, tree lines, or
changes in topography of the land. Perhaps the worst cases we have seen
are those in which a boundary line was assumed and the construction of
a house or other improvements was commenced based on that
assumption, which turned out to be incorrect. For example, in Haag v.
Wilson Properties, LLC, [Ms. SC-2024-0405, May 2, 2025] ___ So. 3d ___
(Ala. 2025), the plaintiff purchased land, believing that a series of red
flags tied to trees marked the boundary line between his property and
the defendant's property. The flags had actually been placed by the
previous owners for tree-clearing purposes and had no relation to the
boundary line of the properties. After the plaintiff constructed a house
and other improvements on what he thought was his property, the
defendant informed the plaintiff that he believed that a portion of the
plaintiff's house encroached on his property. The plaintiff hired a land
12 SC-2024-0678
surveyor to ascertain the true boundary line of the properties; that survey
confirmed that some of the plaintiff's improvements had in fact been
made to the defendant's property. The trial court ultimately granted the
plaintiff an easement to use a portion of the defendant's property. This
Court affirmed the judgment without issuing an opinion, and I concurred
specially. In Morrison v. May, [Ms. SC-2023-0112, Oct. 6, 2023] ___ So.
3d ___ (Ala. 2023), the Mays purchased a lot, including a house, without
obtaining a survey. At the time they purchased the lot, the Mays believed
that the house, the driveway, and an outbuilding were located on that lot.
But, according to a court-ordered survey, they discovered that
approximately 15 feet of the house, the driveway, the outbuilding, and a
gazebo encroached upon the majority of an adjoining lot owned by
Morrison. Morrison requested that the trial court enter a permanent
injunction ordering that the structures encroaching upon her lot be
removed. Rather than issuing a permanent injunction forcing the Mays
to remove the encroachments and to demolish a portion of their house,
the trial court exercised its equitable powers and ordered the Mays to
reimburse Morrison the amount that she had paid for her lot, the taxes
and interest paid thereon, attorney fees, and one-half of the cost of the
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court-ordered survey and appraisal. Thus, although obtaining a survey
may seem like a needless closing cost, having one avoids future
headaches, dissension among neighbors, and litigation costs. In this case
and the other cases, a survey conducted at the time of purchase or
commencement of construction would have established the boundary
line, defined the area of property owned, and eliminated the costs,
uncertainty, and anxiety of asking a court to impose a remedy when an
assumed line of demarcation turns out to be incorrect and not the legal
boundary of the property.
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COOK, Justice (concurring in part and concurring in the result).
With the exception of note 2, I fully concur with both the reasoning
and the conclusion reached in the main opinion. It is my view that if
property is encompassed within an existing lease, the lessee cannot
establish an adverse-possession claim. The appellees, Michael R. Ballard,
Ballard Contractors, Inc., and MRB Farms, LLC ("the Ballard parties"),
certainly have not cited any legal authority that suggests that an
adverse-possession claim can exist in such circumstances.
However, I disagree with the main opinion's assertion in note 2 that
because the Ballard parties have argued for the first time on appeal that
the lease is ambiguous and that the disputed parcel is not within the
scope of the lease, we cannot consider that argument in evaluating the
merits of the appeal. See ____ So. 3d at ____ n.2. First, contrary to this
assertion, the record before us appears to indicate that the Ballard
parties raised this argument in a posttrial brief that was filed before the
Tuscaloosa Circuit Court entered its judgment. Second, even if the
Ballard parties were raising this argument for the first time on appeal,
as the appellees, they can usually make that argument to us even if they
did not make the argument below. See generally Liberty Nat'l Life Ins.
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Co. v. University of Alabama Health Servs. Found., P.C., 881 So. 2d 1013,
1020 (Ala. 2003) (explaining that, subject to certain due-process
exceptions, we may affirm a judgment on any "valid legal ground
presented by the record, regardless of whether that ground was
considered, or even if it was rejected, by the trial court").
Regardless, even if we were to assume that the lease is ambiguous,
the trial court heard all the evidence and found that the lease included
the disputed parcel. This factual finding about what property is
encompassed within the lease is entitled to an ore tenus presumption of
correctness. See Kennedy v. Boles Invs., Inc., 53 So. 3d 60, 68 (Ala. 2010)
(" ' "[W]here the evidence has been [presented] ore tenus, a presumption
of correctness attends the trial court's conclusion on issues of fact, and
this Court will not disturb the trial court's conclusion unless it is clearly
erroneous and against the great weight of the evidence, but will affirm
the judgment if, under any reasonable aspect, it is supported by credible
evidence." ' " (quoting Reed v. Board of Trs. for Alabama State Univ., 778
So. 2d 791, 795 (Ala. 2000), quoting in turn Raidt v. Crane, 342 So. 2d
358, 360 (Ala. 1977))).
Despite this factual finding, however, the trial court concluded that
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the Ballard parties had acquired the disputed parcel by adverse
possession. Because it is not possible for the lessee to adversely possess
property that is being leased, the trial court's conclusion of law is
incorrect. I therefore agree with the main opinion that its judgment in
the Ballard parties' favor must be reversed. See Fadalla v. Fadalla, 929
So. 2d 429, 433 (Ala. 2005) (" ' [T]he ore tenus rule does not extend to cloak
with a presumption of correctness a trial judge's conclusions of law or the
incorrect application of law to the facts.' " (quoting Waltman v. Rowell,
913 So. 2d 1083, 1086 (Ala. 2005))).
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SHAW, Justice (concurring in the result).
I respectfully concur in the result.
A "hunting lease" does not necessarily create a leasehold interest.
"The fact that [an] agreement is entitled 'Hunting Lease' is not
dispositive if in fact the instrument shows that the parties created
something other than a lease." David Lee Boykin Fam. Tr. v. Boykin,
661 So. 2d 245, 249 (Ala. Civ. App. 1995). The right to hunt upon the
land of another can be considered a lease, a "profit à prendre," an
easement, or a license. Id. at 250-51. It depends on the language of the
"lease." Id. 3
Setting aside the nature of the interest created by the hunting lease
in this case, the trial court held that it was "disavowed": "[T]he evidence
presented at trial established that [the defendant] committed the type of
acts that should have made his disavowal presumed." Generally,
permissive possession of land can be repudiated and changed to adverse
or hostile possession.
"In order to change possession from permissive to adverse, the possessor must make a clear and positive disclaimer or repudiation of the true owner's title. The possessor must give
3The "hunting lease" at issue in Boykin was determined to be a
"license coupled with an interest." 661 So. 2d at 251. 18 SC-2024-0678
the true owner actual notice of such disavowal, or he must manifest acts or make a declaration of adverseness so notorious that actual notice will be presumed."
Moss v. Woodrow Reynolds & Son Timber Co., 592 So. 2d 1029, 1031 (Ala.
1992). The repudiation, as Moss notes, must be clear.
In this case, the plaintiff contends that the defendants never
repudiated the hunting lease, and thus did not convert their possession
from permissive to hostile, because the defendants continued to renew
and pay for the hunting lease annually until 2022. Annually renewing
and paying for an agreement for permissive possession would appear
antithetical to hostile and adverse possession. It negates "a clear and
positive disclaimer or repudiation of the true owner's title" and undercuts
any "actual notice" of disavowal or any acts or declarations of adverseness
necessary to presume actual notice. Id. Cf. HealthSouth Rehab. Corp. v.
Falcon Mgmt. Co., 799 So. 2d 177, 182 (Ala. 2001) ("Essentially,
repudiation [of a contract] must amount to an unqualified refusal or
declaration of inability to substantially perform the duties outlined in the
contract."). This, coupled with the limited acts of hostile possession
identified by the trial court, did not provide the requisite disavowal of the
permissive use of the property or notice of such disavowal.
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Stewart, C.J., and Lewis, J., concur.
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APPENDIX