John William Riley v. Kenneth R. Boles (Appeal from Autauga Circuit Court: CV-21-900119).

• Court: Supreme Court of Alabama
• Decided: January 12, 2024
• Docket: SC-2023-0237
• Status: Published

Opinion

Rel: January 12, 2024

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, 2023-2024 _________________________

SC-2023-0237 _________________________

John William Riley

v.

Kenneth R. Boles

Appeal from Autauga Circuit Court (CV-21-900119)

PARKER, Chief Justice.

John William Riley appeals, challenging both the Autauga Circuit

Court's order denying his motion to dismiss and its final judgment SC-2023-0237

declaring that Kenneth R. Boles had an easement by prescription across

Riley's property. We affirm the circuit court's order denying Riley's

motion to dismiss, but we reverse its declaratory judgment entered in

favor of Boles because Boles failed to establish an easement by

prescription.

I. Facts

Riley was born and raised in Autauga County but has resided in

California since 1960. He has owned the property in question, a 25-acre

parcel located on Highway 21 in Autauga County, since 1962. Riley does

not regularly visit this property; at most, he claims to visit it "about every

two years." Riley has given permission to two successive local farmers to

keep cattle on the property. Except for those cattle, the property remains

vacant. At the time Riley purchased it, the property was surrounded by

a fence. There are still fences and gates on the property, but there is some

confusion about where they are and whether they are on the right

boundary lines.

There is a fence along one side of Riley's property. The property on

the other side of the fence is owned by a family named the Hunters. On

Riley's side of the fence an old road leads back to the property currently

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owned by Boles ("the Boles property"). A similar road exists on the

Hunters' side of the fence, also leading to the Boles property.

At some time in the mid-1990s, Thomas Earl Edmondson, Jr.,

began hunting on the Boles property. Until at least 2018, Edmondson

hunted on the Boles property by permission from the former owner.

During that time, Edmondson testified that, in addition to the "old road"

across Riley's property, he used at least two other routes to access the

Boles property. Edmondson also claimed that he had used the road on

Riley's property to access the Boles property throughout that period. The

testimony at trial did not establish that anyone but Edmondson had used

the road on Riley's property to access the Boles property before 2021.

Edmondson obtained a lease to the Boles property in 2016, which

he retained until 2018. In 2016, Edmondson sent Riley a letter notifying

him that he wished to use the road on Riley's property to access the Boles

property and proposing an agreement to that effect. Riley never answered

the letter. At some point in 2016, the Hunters had a gate installed on the

road on their property to keep Edmondson from using it. Edmondson

testified that he had used the road on the Hunters' property to access the

Boles property until the Hunters stopped him from using it. When he

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continued to try to use it, they had him arrested and charged with

trespassing. The charges were dismissed once Edmondson paid a $500

fine and promised not to use that road again. Edmondson has not used

the road on the Hunters' property since 2016.

When Riley visited his property in 2016, he discovered that

Edmondson had "graded" portions of his property with a bulldozer, had

cut part of a field, and had destroyed several trees and portions of his

fence. Riley warned Edmondson to "keep off" his property and told

Edmondson that he would have Edmondson arrested if he came on Riley's

property again. Despite this, Edmondson testified, he continued to use

the road on Riley's property until 2021.

In 2021, Boles acquired his property, which he intended to use as a

hunting ground for himself and his friend Edmondson. Boles testified

that he had used the road on Riley's property to access his property an

unspecified number of times since taking possession of the Boles property

on March 18, 2021. He testified that he had not used the road on Riley's

property before taking possession. At some time after 2021, Riley or his

agents fenced off the road on Riley's property, and Boles and Edmondson

stopped using it. The area is now substantially "grown up." Testimony at

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trial established that there are at least two different roads or methods1

that could be used to access the Boles property.

Boles filed a complaint against Riley in the Autauga Circuit Court,

seeking a judgment declaring that he had a prescriptive easement across

Riley's property. Riley moved to dismiss on the ground that Boles's

complaint failed to allege a justiciable controversy. The circuit court

entered an order denying Riley's motion, held a bench trial at which it

heard testimony ore tenus, and found in favor of Boles. The circuit court

entered a final judgment declaring that Boles had a prescriptive

easement across Riley's property. Riley appealed both the order denying

his motion to dismiss and the final judgment to the Court of Civil

Appeals, which transferred the appeal to this Court on jurisdictional

grounds.

II. Standard of Review

1Edmondson and Boles are duck hunters. They both mentioned that

they have accessed the Boles property in the past by wading across a strip of adjoining swamp owned by another landowner, after driving up to the swamp by a road across the other landowner's property. This method of accessing the Boles property is not a method of vehicular ingress and egress, but both of them mentioned it in their testimony. 5 SC-2023-0237

This Court reviews de novo a trial court's ruling on a motion to

dismiss for lack of subject-matter jurisdiction. DuBose v. Weaver, 68 So.

3d 814, 821 (Ala. 2011). The standard of review requires us to accept the

allegations of the complaint as true and then to consider whether the

plaintiff could possibly prevail on the complaint as pleaded. Newman v.

Savas, 878 So. 2d 1147, 1149 (Ala. 2003).

When a trial court hears testimony ore tenus as the finder of fact,

its findings are given the same weight as factual findings made by a jury.

The trial court's judgment must be affirmed " '[u]nless there is not

sufficient evidence to support the trial court's [judgment] or unless the

trial court's [judgment] is otherwise plainly and palpably erroneous or

contrary to the great weight of the evidence ….' " Smith v. Smith, 482 So.

2d 1172, 1174 (Ala. 1985) (quoting Menefee v. Lowery, 375 So. 2d 793,

795 (Ala. 1979)). When reviewing a trial court's final judgment that does

not contain the court's rationale, this Court assumes that the trial court

made the findings of fact necessary to support its final judgment, unless

those findings are manifestly unsupported by the evidence. Id. This

presumption of correctness has no application, however, " 'when the trial

court is shown to have improperly applied the law to the facts.' " Kennedy

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v. Boles Invs., Inc., 53 So. 3d 60, 68 (Ala. 2010) (quoting Ex parte Board

of Zoning Adjustment of the City of Mobile, 636 So. 2d 415, 417 (Ala.

1994)).

III. Discussion

A. The Motion to Dismiss

Riley's motion to dismiss alleged that Boles's complaint failed to

allege a justiciable controversy because it did not allege that Riley had

obstructed the alleged easement. For a court to have jurisdiction to issue

a declaratory judgment, "[t]here must be a bona fide existing controversy

of a justiciable character to confer upon the court jurisdiction to grant

declaratory relief under the declaratory judgment statutes …." State ex

rel. Baxley v. Johnson, 293 Ala. 69, 73, 300 So. 2d 106, 110 (1974). A

controversy is justiciable for the purpose of issuing a declaratory

judgment when it frustrates or affects the legal rights of any party.

Harper v. Brown, Stagner, Richardson, Inc., 873 So. 2d 220, 225 (Ala.

2003). The touchstone of whether a complaint alleges a justiciable

controversy is whether it alleges a "controversy between parties whose

legal interests are adverse." Gulf Beach Hotel, Inc. v. State ex rel.

Whetstone, 935 So. 2d 1177, 1183 (Ala. 2006).

7 SC-2023-0237

Based on the foregoing, the complaint in this case plainly stated a

justiciable controversy. It alleged that "[p]laintiff [Boles] and his

predecessors in title have been in actual, exclusive, open, notorious, and

hostile possession of a claim of right" to the use of the road on Riley's

property for more than 20 years. This allegation described a controversy

involving the adverse legal interests of Riley, who owns the road, and

Boles, who asserts a right to use the road. The complaint further alleged

that Boles would "suffer immediate and irreparable loss, injury, and

damage" if the circuit court did not issue the declaratory judgment. The

complaint detailed actions Riley had taken to stop Boles from continuing

to use the road, including putting up a fence and warning Edmondson

and Boles to stop using the road.

When ruling on a motion to dismiss, the circuit court must accept

all allegations in the complaint as true. Newman, 878 So. 2d at 1149. It

then must decide whether the plaintiff could possibly prevail on the facts

as pleaded in the complaint. Id. Under this standard, the complaint

alleged a justiciable controversy. Boles wishes to continue using the road

on Riley's property. Riley wishes to stop him from doing so. The facts

alleged by Boles, if true, sufficiently demonstrate that the rights of the

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parties are adverse to each other. We therefore affirm the circuit court's

order denying Riley's motion to dismiss.

B. The Declaratory Judgment

The next issue is whether the circuit court erred in issuing a

judgment declaring that Boles has a prescriptive easement across Riley's

property.

"To establish an easement by prescription, the claimant must use the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner. The presumption is that the use is permissive, and the claimant has the burden of proving that the use was adverse to the owner."

Bull v. Salsman, 435 So. 2d 27, 29 (Ala. 1983) (citing Cotton v. May, 293

Ala. 212, 301 So. 2d 168 (1974); Belcher v. Belcher, 284 Ala. 254, 224 So.

2d 613 (1969); and West v. West, 252 Ala. 296, 40 So. 2d 873 (1949)).

Riley disputes whether Boles's and Edmondson's use of the road on

his property was adverse. He claims that he had no notice of Edmondson's

use of the road on his property until 2016 and that, therefore, he was not

given notice of any adverse claim. Neither party presented any evidence

indicating that Riley had received notice regarding Edmondson's use of

the road before he received Edmondson's 2016 letter proposing an 9 SC-2023-0237

agreement for the use of the road. Under Alabama law, the use of a

roadway is presumed to be permissive unless shown otherwise. Cotton,

293 Ala. at 214-15, 301 So. 2d at 169-70. Therefore, before 2016,

Edmondson's use of the road was presumptively permissive. Therefore,

even if Edmondson's use of the road after 2016 was adverse to Riley, his

use of the road before 2016 cannot count toward the 20-year statutory

period required to establish a prescriptive easement.

This Court has recognized an exception to the presumption of

permissiveness. In Belcher, 284 Ala. at 256-57, 224 So. 2d at 614-15, this

Court held that, when the alleged right-of-way was "the only means of

vehicular ingress and egress" to the claimant's property, the owner of the

right-of-way was charged with presumptive knowledge of the adverse

use. But that circumstance does not exist in this case. Edmondson

admitted that he had used the road on the Hunters' property more

frequently than the one on Riley's property until 2016, when he had a

falling-out with the Hunters and they stopped him from using their road.

Thus, before 2016, the road on Riley's property was not the only means

of vehicular ingress and egress to the Boles property, and any use of that

road by Edmondson before 2016 would still be presumptively permissive.

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However, even if Edmondson's use of the road was adverse to Riley

dating back to the mid-1990s, when Edmondson began hunting on the

Boles property, it still could not create a prescriptive easement in favor

of Boles. Boles argues that because Edmondson has allegedly used the

road between the mid-1990s and 2021, Boles is entitled to a prescriptive

easement. Under Alabama law, when a claimant seeking a private

prescriptive easement has not used the easement himself for the entire

statutorily prescribed prescriptive period, he may "tack" his use onto

periods of use by his predecessors in title. See Apley v. Tagert, 584 So. 2d

816, 818 (Ala. 1991) (discussing Belcher, supra). It is undisputed that

Edmondson has not held any interest in the Boles property except during

a brief period between 2016 and 2018, when he leased the Boles property.

At all other times, he was merely a licensee. He is therefore not a

predecessor in title to Boles, and neither party argues otherwise.

Boles cites no authority for the proposition that use by a licensee

(such as Edmondson) can be "tacked" onto use by the claimant so as to

fulfill the requirement of adverse use for the entire prescriptive period.

This issue appears to be one of first impression for this Court, but it

seems that the weight of available persuasive authority is clearly against

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Boles's position. At common law, "[p]eriods of prescriptive use may be

tacked together to make up the prescriptive period if there is a transfer

between the prescriptive users of either the inchoate servitude or the

estate benefited by the inchoate servitude." Restatement (Third) of

Property: Servitudes § 2.17 (Am.L.Inst. 2000) (emphasis added). This is

commonly known as the requirement of "privity." 2 Thomas E. Atkinson

et al., American Law of Property: A Treatise on the Law of Property in

the United States § 8.59 at 272 (A. James Casner, ed., 1952). For the

required privity to exist,

"there must be some relation between the successive users of such a nature that the use by the earlier user can fairly be said to be made for the later user, or there must be such a relation between them that the later user can be fairly regarded as the successor of the earlier one."

Id. Examples of such a relation are landlord-tenant relations and

relations between an owner and his predecessors in title. Id. See also 28A

C.J.S. Easements § 25 (2019) (" 'Privity' such as will permit the tacking

of the adverse uses of a prescriptive claimant and claimant's predecessor

in interest is the mutual or successive relationship to the same rights of

property."); 25 Am. Jur. 2d Easements and Licenses § 53 (2014) (noting

that the owner of an estate "may tack on the statutory period of

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predecessors in interest when there is privity of estate" (footnotes

omitted)). This privity requirement seems to be implicitly assumed in

many of Alabama's cases involving easements by prescription and

"tacking," in which the inquiry centered around whether the requisite

adverse use was by the claimant "and his predecessor[s] in title."2 See

Belcher, 284 Ala. at 256-57, 224 So. 2d 614-15; Jones v. Johnson, 827 So.

2d 768, 772-73 (Ala. 2002); Ex parte Gilley, 55 So. 3d 242, 246 (Ala. 2010).

Boles, by his own testimony, has used the road on Riley's property

since only 2021. Therefore, to establish an easement by prescription, he

must prove that, before him, his predecessors in title, since at least 2001,

continuously used the premises on which the easement is claimed in a

manner sufficient to establish a prescriptive easement.

Boles offered no evidence at trial to prove that his predecessors in

title ever used the road on Riley's property at any time, much less

continuously since 2001. He offered abundant evidence to show that

Edmondson had used the road since some undetermined date in the mid-

2Indeed, Boles seems to implicitly acknowledge this necessity for

privity by alleging in his complaint that his easement by prescription is based on the use of the road on Riley's property by "plaintiff and his predecessors in title." 13 SC-2023-0237

1990s. But Edmondson is not a predecessor in title to Boles. Edmondson

never had any title to any relevant real-property interest that he could

have transferred to Boles. No such transfer is alleged by any party. The

only relation between Edmondson and Boles is that of friends and

hunting partners. This is not a sufficient relation to satisfy the privity

requirement for "tacking" under any legal authority cited by the parties

or this Court.

In summary, the only way Boles could have established a

prescriptive easement across Riley's property was by presenting evidence

at trial indicating that he and his predecessors in title had used the road

on Riley's property adversely to Riley for the entire 20-year prescriptive

period. Instead, he presented evidence of Edmondson's use, most of which

was presumptively permissive. That evidence was not legally sufficient

to support the circuit court's necessary finding that the road on Riley's

property had been used adversely to Riley by Boles and his predecessors

in title for the entire 20-year period, as alleged in the complaint.

Therefore, the circuit court erred in declaring that Boles had established

a prescriptive easement across Riley's property.

IV. Conclusion

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For the foregoing reasons, we affirm the circuit court's order

denying Riley's motion to dismiss, but we reverse its declaratory

judgment in favor of Boles and remand the cause for further proceedings

consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Wise, Sellers, Stewart, and Cook, JJ., concur.