REL: May 19, 2023
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 published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2022-2023 _________________________
CL-2022-0848 _________________________
Jim Barber et al.
v.
Jeffery K. Landrum _________________________
CL-2022-0854 _________________________
Randolph County Commission
Jeffery K. Landrum
Appeals from Randolph Circuit Court (CV-17-900045)
EDWARDS, Judge.
This case involves the status of an unnamed road in Randolph
County that begins at a point approximately one mile south of New Hope CL-2022-0848 & CL-2022-0854
Church on County Road 5 in Randolph County and runs to a point on the
western bank of the Tallapoosa River below where Crooked Creek flows
into that river. The point where the unnamed road intersects the western
bank of the river is approximately one-and-one-half miles below the R.L.
Harris dam.1 A "County Road 968" sign was eventually placed near the
beginning point of the unnamed road, but, for the sake of clarity, we will
refer to the above-described road as "the unnamed road," except as the
context otherwise dictates.
These appeals follow this court's decision in Randolph County
Commission v. Landrum, 342 So. 3d 574 (Ala. Civ. App. 2021), which
reversed an August 11, 2020, judgment entered by the Randolph Circuit
Court ("the trial court") and remanded the case for the trial court to
comply with Rule 19, Ala. R. Civ. P., regarding the recipients of property
interests from or through C.C. Twilley, whose pertinent properties
1The Federal Energy Regulatory Commission issued a license to Alabama Power Company for the R.L. Harris hydroelectric project (formerly known as the "Crooked Creek Project") on December 27, 1973. Alabama Power Co., 3 FERC 63,036, 65,241 n.2 (1978). The R.L. Harris dam was completed in October 1982 and created Lake Wedowee.
2 CL-2022-0848 & CL-2022-0854
consisted of timberland that abutted the unnamed road. 2 342 So. 3d at
580. On remand, Jim Caldwell, Peter E. Mari, John F. Mari, Peggy
Neumayer, Bodie Caldwell, Scott Caldwell, Willie Caldwell, Sandra East,
Lynda Woodall, Mary George Hay, Doris Ragsdale, Felix East, Jr., Mike
Twilley, Janice Bryan, 3 Carol Ann Dewberry, David Twilley, Pamela
Wellborn, Amelia Twilley, Suellen Rush, individually and as personal
representative of the estate of Don Rush, and Nancy Rush (hereinafter
referred to collectively as "the Twilley beneficiaries") filed a motion in the
trial court alleging that they were the successors in title to C.C. Twilley
through his deceased children, requesting that they be made parties to
the action, adopting the pleadings and motions that had previously been
filed in relation to their purported interests, and requesting that the trial
court enter a judgment based on the trial proceedings that had already
occurred rather than conducting a new trial. The trial court granted that
2It is unclear from the record when C.C. Twilley acquired the properties abutting the unnamed road, and C.C. Twilley died at some time not revealed in the record. Based on materials in the record, it appears likely that he was the same C.C. Twilley who died at some point before July 1, 1967, as discussed in Cahaba Forests, LLC v. Hay, 927 F. Supp. 2d 1273, 1278 (M.D. Ala. 2013).
3Bryan is referred to in some pleadings as "Janice Bryant." 3 CL-2022-0848 & CL-2022-0854
motion, added the Twilley beneficiaries as parties to the action, and
entered a judgment on June 10, 2022, in favor of Jeffery K. Landrum
determining that the unnamed road was a public road and that a part of
the unnamed road was a county road.
In appeal number CL-2022-0848, Jim Barber; Jimmy Goss; 4
Tommy Owens; Kevin Hyatt;5 Tallapoosa Timberlands, LLC; Tallapoosa
River Hunting Club ("the hunting club"), a nonprofit association;
Resource Management Service, LLC ("RMS"); and the Twilley
beneficiaries appeal from the June 2022 judgment. The Twilley
beneficiaries and Barber, Goss, Owens, Hyatt, Tallapoosa Timberlands,
LLC, the hunting club, and RMS are hereinafter referred to collectively
as "the private-party defendants." In appeal number CL-2022-0854, the
Randolph County Commission ("the Commission") also appeals from the
June 2022 judgment.
In July 2016, Landrum purchased 34 acres of real property from
David Stephens ("Landrum's property"). Landrum's property abutted
4Goss is referred to in some pleadings as "Jimmy Gross."
5Hyatt is referred to in some pleadings as "Kevin Hyiatt."
4 CL-2022-0848 & CL-2022-0854
Crooked Creek, a tributary of the Tallapoosa River, and was located
north and northwest of the unnamed road. Landrum's property did not
abut the unnamed road, but the use of that road was necessary for him
to access his property using one or more other roads or ways that ran in
a northerly direction from the unnamed road through other property
owned by the Twilley beneficiaries. We note that Landrum also owned
other property abutting Crooked Creek but that property did not share a
boundary with the property that he purchased from Stephens.
Based on the evidence presented at trial, when Landrum purchased
his property from Stephens, the unnamed road had a County Road 968
sign near its beginning point at County Road 5 and no gate was present
across the unnamed road. However, according to Landrum, in the fall of
2016, a gate was installed across the unnamed road a short distance from
County Road 5, and the County Road 968 sign was no longer present.
The gate remained open for a few weeks but eventually was closed and
locked, apparently by the hunting club.
Landrum contacted Stephens about the gate, and Stephens
informed Landrum that he had obtained a gate key from the hunting club
to use the unnamed road to access his property, which Stephens had 5 CL-2022-0848 & CL-2022-0854
visited only three or four times per year when he had owned that property
between 1994 and 2016. Stephens testified that he did not recall a gate
being absent near the entrance to the unnamed road from County Road
5; instead, he recalled that the gate had been moved further from the
entrance in the late 1990s and that it had been open or closed depending
on the time of the year, such as during hunting season.6
6There was conflicting testimony about whether there had been a gate located near the beginning of the unnamed road in the past. Testimony indicated that such a gate had been present at certain times after the 1970s, had been present during certain times of year, such as hunting season, or had been permanently present since 1961. Some of those who testified to the presence of the gate also testified that keys to one or more of the locks on the gate could be obtained either from the hunting club or from someone associated with timber-management operations occurring nearby. Also, there was testimony indicating that at least one gate had been present in the past that had restricted access to an area beside the unnamed road, but not to the unnamed road itself.
Stephens's testimony regarding the gate being moved would be consistent with an attempt to prevent access to the unnamed road via an older entrance to that road from County Road 5 after a new entrance had been created from that road at some point between 1974 and 1992, see discussion, infra. Similar testimony about a gate further from County Road 5 was provided by Charles Sparks, but he was not sure of when the one time he had been "stopped by a gate" "several years ago" (before the erection of the newest gate a few years before trial) had been. However, no definitive testimony was provided regarding when or why the new entrance had been created or why the gate, assuming it had been present, had been moved. 6 CL-2022-0848 & CL-2022-0854
Landrum testified that he had also contacted Burrell Jones, who
had been the County Engineer for Randolph County since 1990, about
the gate that was erected after Landrum had purchased the Landrum
property. According to Landrum, Jones had said that "the [c]ounty
hadn't maintained the road in 20 years, and it was closed by
abandonment, and he used the word 'prescription.' " Jones admitted at
trial that, during his cursory record search, he had found no record
indicating that the county had vacated the unnamed road, and his
statement to Landrum that the unnamed road had been closed by
abandonment supports an inference that the county had considered the
unnamed road to be a county road at one time. See Bownes v. Winston
Cnty., 481 So. 2d 362, 364 (Ala. 1985) (explaining that, in the absence of
a proper vacation of a road by a county pursuant to Ala. Code 1975, § 23-
4-1 et seq., or by abutting landowners pursuant to Ala. Code 1975, § 23-
4-20 et seq., "[a] public way or easement of passage which the public has
in respect to a highway may be abandoned and thus lose its public
character in one of two ways. Nonuse for a period of 20 years will operate
as a discontinuance of a public road. Likewise, there can be an
abandonment by nonuse for a period short of the time of prescription 7 CL-2022-0848 & CL-2022-0854
when there has been the construction of a new highway replacing an old
road"). There also was conflicting evidence about members of the public
continuing to use the unnamed road to access the Tallapoosa River up
until a couple of years before trial and about the county having graded
the unnamed road one or more times after 1976 and as recently as 2014.
On July 12, 2017, Landrum filed a complaint in the trial court
against Barber, Owens, and Hyatt, who he alleged were members of the
hunting club, which leased land (apparently from the Twilley
beneficiaries) on which at least part of the unnamed road is located.
Landrum sought a declaration that the unnamed road was a public,
county road and an injunction requiring the removal of the gate that had
been placed across the unnamed road near the intersection with County
Road 5.7 Landrum alleged that the unnamed road had been in existence
as a public road for over 100 years and had been used by the public to
access the Tallapoosa River from County Road 5, in addition to being
7After establishing that a pertinent part or all of the unnamed road was a public, county road, Landrum intended to file an action to condemn an easement from his property to the unnamed road or to otherwise establish a legal right to access the unnamed road.
8 CL-2022-0848 & CL-2022-0854
used by landowners to access their respective properties from County
Road 5. Landrum subsequently filed an amended complaint.
Barber and Goss own a parcel of land on either side of the unnamed
road where it intersects County Road 5, and they leased their land to the
hunting club. Goss eventually was added as a defendant in Landrum's
action, as was the hunting club. Also, Tallapoosa Timberlands, LLC,
which leased property from the Twilley beneficiaries, and RMS, which
conducted timber-harvesting operations and management for Tallapoosa
Timberlands, LLC, were added as defendants, along with the
Commission. The private-party defendants, less the Twilley
beneficiaries, who had not yet been made parties in Landrum's action,
see Landrum, supra, are hereinafter referred to as "the original private-
party defendants."
The original private-party defendants and the Commission filed
answers denying the material allegations in Landrum's complaint and
some of the original private-party defendants filed a counterclaim
requesting that the trial court declare the unnamed road to be a private
road. The trial court held ore tenus proceedings in September 2019. At
trial, the original private-party defendants and the Commission argued 9 CL-2022-0848 & CL-2022-0854
that Landrum had failed to establish that the unnamed road was a
public, county road. They also argued that, if Landrum had established
that the unnamed road was a public, county road, the unnamed road had
been abandoned through nonuse. In response, Landrum contended that
he had established that the unnamed road was a public, county road
based on common-law, implied dedication. Landrum also contended that
he had established that the unnamed road was a public, county road
because "you can see clearly on the 1970 format that that is a public
road," presumably referring to Landrum's exhibit 5, which was a copy of
a 1974 general highway map of Randolph County that was prepared by
the State Highway Department Bureau of Planning and Programming
Surveying and Mapping Division in cooperation with the United States
Department of Transportation ("the 1974 map"). Landrum further
argued that the unnamed road had not been vacated by the Commission
and that there was no clear and convincing evidence that it had been
abandoned by the public.
After the filing of posttrial briefs, which the trial court had
requested, the trial court entered an order on April 7, 2020, declaring
that Landrum had established, based on common-law implied dedication, 10 CL-2022-0848 & CL-2022-0854
that "the road designated County Road 968" was a public road beginning
at County Road 5 and running to the Tallapoosa River and enjoining the
maintenance of the gate. The trial court also noted that "[n]ot all public
roads are 'county roads' " but that County Road 968 was a county road. 8
8Landrum admitted at trial that the unnamed road had been labeled "County Road 968" when the county 911 system was upgraded during the mid-1990s. There was some suggestion that the contractor that the county had retained to perform that upgrade had provided the names for unnamed roads and had made mistakes during that process. That suggestion is in conflict, however, with the fact that the 911 system indicated that County Road 968 ended after 1.8 miles and well before the Tallapoosa River, but a parcel-viewer map from the Randolph County Revenue Commissioner indicated that County Road 968 ran to the Tallapoosa River. Pam Taylor, who was the Randolph County Revenue Commissioner at the time of trial, testified that county road numbers had not always been known and placed on the parcel-viewer maps when they were created in 1974 by her predecessor in office; that she and Jones had not updated the maps as they had been instructed to do in the early 2000s; that the particular parcel-viewer map at issue was not one she would use; that she preferred a map that indicated that County Road 968 ended as it turned in a northerly direction toward -- but well short of -- Crooked Creek, rather than in a northeasterly direction toward the Tallapoosa River; and that she believed a mistake had been made on the parcel-viewer map at issue regarding the designation of County Road 968 as including the portion of the unnamed road that extended to the Tallapoosa River. Even assuming that that was the case, however, in light of the historical location of the unnamed road as extending from County Road 5 to the Tallapoosa River, such a mistaken labeling of the unnamed road as County Road 968 along its entire length on the parcel- viewer map at issue supports an inference that the information on that parcel-viewer map had not been derived from the 911 system, which did not include the Tallapoosa River part of the unnamed road as part of 11 CL-2022-0848 & CL-2022-0854
The trial court noted that the unnamed road had been used by the public
when C.C. Twilley had acquired and owned his property, that homeplaces
had existed on that property before C.C. Twilley had acquired it, that the
public had used that property to access a ferry in the area before C.C.
Twilley had acquired his property, and that the general public had used
the unnamed road to access the river for recreation. The trial court also
noted that, although there was conflicting testimony regarding whether
the county had "scraped" the unnamed road as a part of road
maintenance, the County had placed and replaced "County Road 968"
signage on the road and had placed a stop sign on the road where it
intersected County Road 5; Jones testified that he had placed a stop sign
where the unnamed road entered County Road 5 when he replaced the
County Road 968 sign that had been removed after Landrum had
purchased his property from Stephens. The trial court also noted that
the county's "mapping system list[ed] the road as a county road,"
County Road 968 -- the 911 system did not show that part of the unnamed road at all -- but from some other source showing a public, county road that ran from County Road 5 to the Tallapoosa River. 12 CL-2022-0848 & CL-2022-0854
apparently referencing the parcel-viewer maps that were admitted into
evidence at trial.
On May 7, 2020, and May 18, 2020, respectively, the Commission
and the original private-party defendants filed respective motions
arguing that that the trial court had erred by concluding that the
unnamed road was a public, county road and that, based on the multiple
maps presented at trial and the testimony from various witnesses as to
the location of different roads that led or had led to the Tallapoosa River,
the location of the unnamed road could not be determined from the April
2020 order ("the May 2020 motions").9 We concluded in Landrum that
the April 2020 order was not a final judgment and that the May 2020
motions had been improperly designated as postjudgment motions
9As part of their argument, the original private-party defendants represented to the trial court that the Commission had no interest in maintaining the unnamed road because of the cost of doing so. They further stated that the abutting owners of the land traversed by the unnamed road would arrange to vacate it upon any adverse ruling and that the trial court should not attempt to delay the inevitable. The original private-party defendants failed to note, however, that any such attempted vacation would involve consideration of access rights that might be affected. See Ala. Code 1975, § 23-4-20(a) & (d)(2) (discussing the preservation of other property owners' respective rights to ingress and egress as part of a proceeding to vacate a road). 13 CL-2022-0848 & CL-2022-0854
because of the remaining dispute as to the location of the road at issue in
light of testimony regarding the existence of more than one road that ran
to the Tallapoosa River. 342 So. 3d at 577. Instead, we concluded that
the May 2020 motions were motions requesting that the trial court enter
a final judgment that adjudicated what road or parts of roads constituted
the public, county road at issue. Id.
On August 11, 2020, the trial court entered a judgment denying the
May 2020 motions and declining to amend the April 2020 order except to
make the following change:
" 'In an effort to clarify the intended boundaries of the roadway at issue, County Road 968, the ... April ... 2020 [order], is amended to reflect the intent of the Court that County Road 968 begins at the intersection of County Road 5 and continues to an orange marking as depicted on [Landrum's exhibit] #3 map. The same road is depicted on [the Commission's exhibit] #26A. Said road is depicted in green and highlighted in orange. And also shown on [the original private-party] defendant's [exhibit] #1 to a red mark.' "
342 So. 3d at 577. The marks referenced on the exhibits described in the
amendment to the April 2020 order reflect that the termination point of
County Road 968 was relatively near the second of two forks in the
unnamed road that were discussed at trial; from the second fork, the
14 CL-2022-0848 & CL-2022-0854
right fork ran in a northeasterly direction to the Tallapoosa River and
the left fork ran in a northerly direction toward, but well short of,
Crooked Creek and Landrum's property. We read the amended language
as leaving intact the trial court's determination that the unnamed road
remained a public road for its entire length to the Tallapoosa River, i.e.,
as including the right fork, particularly in light of the lack of any
determination that that part of the unnamed road had been abandoned
by nonuse, although we are not clear as to what evidentiary basis there
was to conclude that the unnamed road was only a county road to the
extent described in the language quoted above.10
10The determination that County Road 968 ended well before it reached the Tallapoosa River was consistent with evidence indicating that that part of the unnamed road was impassable to two-wheel drive vehicles when the 911 system was upgraded, although it had previously been established as a public, county road based on the public use of the road to access the Tallapoosa River. See discussion, infra. However, the fact that it was impassable at one point in time is not the same as it being permanently impassable, and, as noted above, there was also evidence indicating that, up until a few years before trial, members of the public had still accessed the river using the unnamed road, including with vehicles. No party argues that the trial court erred by not concluding that County Road 968 extended to the Tallapoosa River. See Davis v. Linden, 340 So. 2d 775, 777 (Ala. 1976); Purvis v. Busey, 260 Ala. 373, 378, 71 So. 2d 18, 22 (1954). 15 CL-2022-0848 & CL-2022-0854
On September 8, 2020, Landrum, the Commission, and the original
private-party defendants filed a joint motion, purportedly pursuant to
Rule 60(b), Ala. R. Civ. P., seeking to supplement the April 2020 order
because they were concerned that the August 2020 judgment had been
entered after the May 2020 motions purportedly had been denied by
operation of law. See Landrum, 342 So. 3d at 577 n.7. The trial court
entered an order granting the purported Rule 60(b) motion and amending
the April 2020 order to include the same language regarding the intended
boundaries of County Road 968 it had included in the August 2020
judgment. In the September 2020 order, the trial court acknowledged
that the April 2020 order had failed to adequately identify the location of
the public, county road and that, for the April 2020 order "to have any
meaning to the parties with respect to finalizing the issues," that order
had to be supplemented.
The original private-party defendants and the Commission timely
appealed to the supreme court, which transferred the appeals to this
court, pursuant to Ala. Code 1975, § 12-2-7(6). 11 This court reversed the
11We note that, even assuming that our conclusion as to the lack of finality of the April 2020 order was incorrect, the Commission and the 16 CL-2022-0848 & CL-2022-0854
order and remanded the case so that the trial court could comply with
Rule 19, Ala. R. Civ. P. See Landrum, supra. As noted above, on remand,
the Twilley beneficiaries were added as defendants, and they requested
that the trial court enter a judgment after aligning them with the original
private-party defendants and without conducting a new trial. The trial
court granted that motion and, on June 10, 2022, entered a judgment
expressly adopting the April 2020 order and the August 2020 judgment
as its final judgment.
On July 13, 2022, the private-party defendants submitted a
proposed corrected final judgment. See George v. Sims, 888 So. 2d 1224,
1227 (Ala. 2004) ("Generally, a trial court has no jurisdiction to modify or
amend a final order more than 30 days after the judgment has been
entered, except to correct clerical errors."). On July 18, 2022, the trial
court entered a corrected judgment that, in addition to referencing and
adopting the April 2020 order, referenced and adopted the September
original private-party defendants' respective appeals in Landrum were timely filed because, assuming their purported May 2020 motions were postjudgment motions that were denied by operation of law a few days before the entry of the August 2020 judgment, their notices of appeal were timely filed in relation to the date of such denials. 17 CL-2022-0848 & CL-2022-0854
2020 order in lieu of the purported August 2020 judgment described in
the June 2022 judgment. Landrum did not object to the correction of the
June 2020 judgment, and, as noted above, the September 2020 order and
the August 2020 judgment used identical language for the location of
County Road 968. See S.L.J.F. v. Cherokee Cnty. Dep't of Hum. Res., 165
So. 3d 607, 609 n.2 (Ala. Civ. App. 2014) (noting that the correction of a
judgment "under Rule 60(a), Ala. R. Civ. P., is not a new judgment").
Thus, we consider the correction to be immaterial to our review.
On July 20, 2022, the private-party defendants filed their notice of
appeal to this court, and, on July 21, 2022, the Commission filed its notice
of appeal to this court. We transferred the appeals to the supreme court
for lack of jurisdiction. The supreme court then transferred the appeals
to this court, pursuant to § 12-2-7(6), Ala. Code 1975. Also, this court
granted the appellants' joint motion to incorporate the record on appeal
from Landrum.
The presumptions of correctness attending the ore tenus rule apply
to this court's review in the present case. Thus,
" ' "[w]e must accept as true the facts found by the trial court if there is substantial evidence to support the trial court's findings." ' Allsopp v. Bolding, 86 So. 3d 952, 959 (Ala. 2011) 18 CL-2022-0848 & CL-2022-0854
(quoting Beasley v. Mellon Fin. Servs. Corp., 569 So. 2d 389, 393 (Ala. 1990)). This standard is based on a recognition of the trial court's unique position of being able to evaluate the credibility of witnesses and to assign weight to their testimony."
Wehle v. Bradley, 195 So. 3d 928, 934 (Ala. 2015). Also,
"[w]hen the trial court does not make any specific finding of fact on a matter pertinent to its judgment,
" 'this Court will assume that the trial judge made those findings necessary to support the judgment.... Under the ore tenus rule, the trial court's judgment and all implicit findings necessary to support it carry a presumption of correctness and will not be reversed unless "found to be plainly and palpably wrong." ... "The trial court's judgment in such a case will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment." '
"Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So. 2d 375, 378 (Ala. 1992)."
Russell Petroleum, Inc. v. City of Wetumpka, 976 So. 2d 428, 431-32 (Ala.
2007).
"The deference owed a trial court under the ore tenus standard of review, however, does not extend to the trial court's decisions on questions of law. Appellate review of questions of law, as well as whether the trial court has properly applied that law to a given set of facts, is de novo."
Wehle, 195 So. 3d at 934. 19 CL-2022-0848 & CL-2022-0854
The private-party defendants and the Commission challenge the
trial court's determination that what it determined was County Road 968
had been established as a public, county road based on common-law
dedication. Based on the evidence presented at trial and certain facts of
which this court may take judicial notice, we find that contention to be
without merit. We likewise conclude that the trial court's implicit
rejection of the argument that County Road 968 had been abandoned to
be supported by the evidence.
"A public road may be established by common law dedication, statutory proceeding, or by prescription. … An open, defined roadway, through reclaimed land, in continuous use by the public as a highway without let or hindrance for a period of twenty years becomes a public road by prescription. When such circumstances are shown, a presumption of dedication or other appropriation to a public use arises. The burden is then on the landowner to show the user was permissive only, in recognition of his title and right to reclaim the possession. …
"In Benson v. Pickens County, 260 Ala. 436, 70 So. 2d 647 (1954), it was noted that the above principles were not applicable to wooded or unimproved lands or lands which, though once reclaimed, had been 'turned out' or left open and unused. Instead, where the road runs over unimproved or 'turned out' lands there is no presumption of dedication by mere use; rather there is a presumption of permissive use and the user must establish his use as adverse to that of the owner. This principle is grounded on sound policy. Otherwise, an owner with no present use for the land over 20 CL-2022-0848 & CL-2022-0854
which a road runs would be required to suffer the expense of taking affirmative action to prevent travel over his unused land to avoid having a public road established on that land."
Ford v. Alabama By-Prods. Corp., 392 So. 2d 217, 218-19 (Ala. 1980).
As noted above, the evidence presented at trial included the 1974
map, and Landrum directed the trial court to that map in support of his
argument regarding the nature of the unnamed road. See Rules 803(8)
and 803 (16), Ala. R. Evid. (respectively, setting forth the public-records
and ancient-document exceptions to the hearsay rule); Ullman Bros. v.
State, 16 Ala. App. 526, 528, 79 So. 625, 627 (1918) (noting "the rule
recognizing ancient maps and ancient documents as competent evidence
of what they tend to show"). The 1974 map was compiled from aerial
photographs taken in 1966 and a field examination in 1973. The 1974
map reflects the unnamed road, although its intersection with what was
eventually named County Road 5 was at a fork in that road, rather than
the "T" intersection reflected on earlier maps of which we have taken
judicial notice, see discussion infra, and that fork was located south of
the intersection claimed by Landrum as the beginning point of the
unnamed road on County Road 5. The more northerly intersection was
added at some point between 1974 and 1992, and it appears that that 21 CL-2022-0848 & CL-2022-0854
entrance would have eased the transition from the unnamed road to the
paved part of County Road 5 as it headed in a northwesterly direction
toward Cragford; the older southerly intersection (as reflected on the
1974 map) required the navigation of a very sharp turn and that
intersection was located approximately where the paved part of County
Road 5 ended and unpaved County Road 848 began headed in a southerly
and then southeasterly direction toward Malone. See discussion, infra
and note 6, supra.12 Also, based on a comparison of the 1974 map with
earlier maps and certain testimony at trial, the unnamed road had been
improved from its previously unimproved condition to a "gravel or stone
road" throughout its entire length, although it does not appear to have
been subsequently maintained in that condition, and portions of that
road may have been shifted to the west and north of their original
location (the apparent shift, however, may merely have been based on the
use of aerial photography in creating the 1974 map).
12We note that the parties presented no argument regarding the import of either intersection insofar as the issue whether the unnamed road was a public, county road. Also, County Road 848 and County Road 5 apparently were at one time referred to on the revenue commissioner's map system as the "Malone-Cragford Road." 22 CL-2022-0848 & CL-2022-0854
We note that the private-party defendants and the Commission
presented State Highway Department maps from 1984 and 2000 that did
not include the unnamed road, and they attempted to imply that the
unnamed road might have been a private road. However, such an
implication is squarely at odds with the testimony that the trial court
had discussed in the April 2020 order in support of its conclusion that the
unnamed road was a public, county road and with the nature of the maps
at issue reflecting the highways of Randolph County, see Black's Law
Dictionary 876 (11th ed. 2019) (defining "highway" as "[a] free and public
roadway or street that every person may use"); 39 Am. Jur. 2d Highways,
Streets, and Bridges § 1 (2019) ("The term highway refers to a road, main
road, public road, or thoroughfare .... The essential feature of a highway
is that it is a way over which the public at large has the right to pass, or
may lawfully pass, as a road or way open to the use of the public,
particularly for vehicular traffic. … The term highway is ordinarily used
in contradistinction to a private way, over which only a limited number
of persons have the right to pass, and the expression private highway is
a misnomer and public highway is tautology." (footnotes omitted)). That
implication is also belied by Jones's statement to Landrum that he 23 CL-2022-0848 & CL-2022-0854
believed that the unnamed road had been abandoned and does not
adequately account for the import of the presence of the predecessor to
the unnamed road on earlier maps, see discussion infra, or the recurrence
of the unnamed road on the 1992 general highway map of Randolph
County prepared by the State Highway Department Bureau of State
Planning Surveying and Mapping Division in cooperation with the U.S.
Department of Transportation ("the 1992 map"), which was compiled
from aerial photographs taken in 1985 and a field examination in 1991.
See 3M Co. v. Dunn, 50 Ala. App. 329, 333, 279 So. 2d 132, 136 (Civ. App.
1973) (discussing the taking of judicial notice as to official maps); see also
Hinds v. Federal Land Bank of New Orleans, 237 Ala. 218, 220, 186 So.
153, 154 (1939); McMillan v. Aiken, 205 Ala. 35, 42-43, 88 So. 135, 141-
42 (1920). The 1992 map reflects the unnamed road as a "gravel, stone,
or soil road" and, as compared to the 1974 map, the intersection of the
unnamed road with what eventually was named County Road 5 had been
moved to the location where Landrum claimed the unnamed road began.
Interestingly, the private-party defendants and the Commission
apparently failed to locate the 1992 map in their search to locate maps
reflecting the highways of Randolph County, and Jones indicated that he 24 CL-2022-0848 & CL-2022-0854
had ceased searching for maintenance records as to the unnamed road in
1993, purportedly on the basis that that was when the computer records
began, although he conceded that maintenance records from before 1993
might have existed. Jones also admitted that he had performed only a
cursory search of records to determine whether the unnamed road had
been vacated, which is odd given that, if such a proceeding had occurred,
it would likely have been between 1974 and 1984 based on the maps
presented at trial.
As noted above, the trial court determined in the April 2020 order
that common-law dedication of the unnamed road had been established
based, in part, on evidence regarding past public use of that road to access
houses and a ferry on the Tallapoosa River. That finding was supported
by the evidence, particularly when considered in light of the fact that the
unnamed road is on the 1974 map and is further buttressed by past maps
reflecting the predecessor to the unnamed road. See 3M Co., Hinds, and
McMillan, supra. The 1937 General Highway and Transportation Map
of Randolph County prepared by the State Highway Department in
cooperation with the U.S. Department of Agriculture Bureau of Public
Roads based on data obtained from the State-Wide Highway Planning 25 CL-2022-0848 & CL-2022-0854
Survey, reflects that an unnamed, "unimproved road" began at a "graded
and drained road" (what eventually was designated as County Road 5)13
approximately one mile south of New Hope Church and the public school
that was located across the street from that church. That unimproved
road ran in a westerly then northwesterly direction for a few miles to the
western bank of the Tallapoosa River, where a ferry was located; houses
and farm units were "in use" along the road. That unnamed road also
included a fork in the approximate location of the second fork in the
unnamed road that was discussed at trial. The right fork (part of the
unnamed road) ran to the ferry and the other fork ran in a northerly
direction ("the north-fork road"), with two farm units in-use near the fork.
The north-fork road appears to be consistent with an old roadbed depicted
on the parcel-viewer map that Taylor preferred to use, see note 8, supra,
but the north-fork road continued further and ran to the area where
Crooked Creek intersected the Tallapoosa River. Also, the north-fork
road included a fork with another unnamed road -- with a house, several
13It is unclear from the record when County Road 5 received that name. The first general highway map designating that road as County Road 5, rather than having no name, is the 2000 map, although that road had long been a paved, county road. 26 CL-2022-0848 & CL-2022-0854
farm units, and a sawmill in use along its length -- that ran in a westerly
direction to intersect the "graded and drained road" (what was eventually
designated as County Road 5) approximately one mile north of New Hope
Church. In other words, the predecessor to the unnamed road and the
other unnamed roads formed a loop around New Hope Church and
provided routes for access to houses, farms, a sawmill, and the ferry from
both the north and the south from a "graded and drained road" that
eventually was designated County Road 5.
On the 1937 map, on the opposite side of the Tallapoosa River from
the unnamed road, the ferry joins another unnamed road that continues
in a northwesterly direction towards Wedowee. The 1937 map also
indicates that there were houses or farm units "in use" near the
Tallapoosa River end of that road. The foregoing information is likewise
reflected on the 1938 Traffic Flow Map of Randolph County prepared by
the State Highway Department in cooperation with the Federal Works
Agency Public Roads Administration, based on data obtained from the
State-Wide Highway Planning Survey, and on the1948 General Highway
Map of Randolph County prepared by the State Highway Department in
cooperation with the U.S. Department of Commerce Bureau of Public 27 CL-2022-0848 & CL-2022-0854
Roads, based on data obtained from the State-Wide Highway Planning
Survey.
It is unclear from the record exactly when C.C. Twilley purchased
his properties, but it is clear from the record that either before or after
those purchases, and certainly before 1974, the public use of the
unnamed road under claim of right had been established. The record
included testimony indicating that the grandfather of Wayne Vinson had
owned a house at the end of the unnamed road where Vinson's mother
was born and that his grandfather had owned and operated the ferry
(although counsel for the original private-party defendants apparently
confused Vinson at trial regarding the location of the unnamed road).
Based on a 1911 U.S. Geological Survey Soil Map prepared by the U.S.
Department of Agriculture, the ferry was referred to as the Wellborne
Ferry. Both the referenced unnamed roads and the ferry would have
been known to the court of county commissioners, the predecessor entity
to the county commission. See Tuscaloosa Cnty. v. Foster, 132 Ala. 392,
400, 31 So. 587, 589 (1902) (discussing the requirement that "all ferries
crossing a stream with a public road must be licensed" through the court
of county commissioners in accordance with pertinent statutes); see also 28 CL-2022-0848 & CL-2022-0854
Ala. Code 1975, § 11-3-10 (discussing the authority of the county
commission regarding "the establishment, change, or discontinuance of
roads … and ferries within the county, except where otherwise provided
by law, to be exercised in conformity with the provisions of this Code"),
and predecessor statutes back to Ala. Code 1852, § 703 (stating that the
court of county commissioners "possesses original jurisdiction in relation
to the establishment, change, or discontinuance of roads … and ferries,
within its county; to be exercised in conformity with the provisions of this
code"). See generally 26 C.J.S. Dedication § 17 (2022) ("What amounts to
a dedication by implication depends on the facts of the particular case,
and no hard and fast rule can be laid down as a guide for the courts.
Evidence with respect to a dedication may be found on maps or plats,
either supporting or rejecting the implied dedication. Acquiescence of a
landowner, without objection, in a public use for a long time, is such
conduct as proves and indicates to the public an intention to dedicate."
(footnotes omitted)).
Based on the foregoing, what appears to have been the predecessor
to the unnamed road had long served as a road to access houses, farms,
and a ferry across the Tallapoosa River, and the ferry had led to another 29 CL-2022-0848 & CL-2022-0854
unnamed road that had continued toward Wedowee. There is no evidence
indicating that any of the houses were occupied after the early 1960's
and, at some point before 1974, the ferry was no longer in use. No
structures or the ferry are reflected on the 1974 map or later maps and
those maps likewise do not reflect the north-fork road or the other
unnamed road running in a westerly direction from the north-fork road.
Nevertheless, although the properties abutting the unnamed road had
been used for timber and hunting since the 1960's, the unnamed road
clearly had remained a public, county road based on the 1974 map and
based on the evidence presented at trial indicating that the unnamed
road continued to be used by members of the public before and after the
1970s to access the Tallapoosa River. See CRW, Inc. v. Twin Lakes Prop.
Owners Ass'n, Inc., 521 So. 2d 939, 941 (Ala. 1988) (stating that "[i]t is
the character, rather than the quantum, of use which forms the test for
determining whether a road is public or private"); see also Powell v.
Hopkins, 288 Ala. 466, 472, 262 So. 2d 289, 294 (1972).
There was testimony indicating that the unnamed road was used
by owners of property abutting Crooked Creek to access their respective
properties, although those property owners assumed that they had 30 CL-2022-0848 & CL-2022-0854
needed permission to use the unnamed road. According to James Perry,
C.C. Twilley placed the first gate near the entrance to that road in 1961.14
However, as noted above, there was conflicting evidence regarding
whether a gate was continuously present at the entrance to the unnamed
road and regarding the extent to which any such gate had remained
closed. For example, there was testimony indicating that the gate might
be open or closed depending on whether it was hunting season. As noted
above, there was also evidence indicating that the public had continued
to use the unnamed road to access the Tallapoosa River, including with
vehicles. See 39 Am. Jur. 2d Highways, Streets, and Bridges § 117 (2019)
("The acts of private landowners are generally insufficient, alone, to
establish the abandonment of a public road or highway, as by the erection
14James Perry testified that his family had owned property in the area at issue for 110 years and that he had obtained his "landlocked" property from his father. In light of the north-fork road and other unnamed roads indicated on the 1937, 1938, and 1948 maps, it is unclear when or how Perry's property may have become "landlocked." Also, although Perry testified that he believed his access, and his father's access, to his property had been by permission, at least after C.C. Twilley erected a gate at the entrance to the unnamed road in 1961, the trial court could have discounted that testimony in light of the fact that Perry's access to his property had been threatened by a previous disagreement with the hunting club over the gate. 31 CL-2022-0848 & CL-2022-0854
of fences, gates, or barriers to public usage, given the principle that a
private landowner has no right to treat a public highway as a private
roadway so as to force the abandonment of the public highway."
(footnotes omitted)); cf. Alexander-City Union Warehouse & Storage Co.
v. Central of Georgia Ry. Co., 182 Ala. 516, 524, 62 So. 745, 747 (1913)
("No adverse possession of land which is devoted to the use of the public
for a street or a road can ever ripen into or give rise to a title to such land.
Every such use is necessarily an obstruction of the highway and a public
nuisance which no lapse of time can legalize.").
Based on the foregoing, we reject the argument of the private-party
defendants and the Commission that the trial court erred by concluding
that County Road 968 was a public, county road, and we see no reason
for an extended discussion as to the trial court's rejection of the argument
that County Road 968 had been abandoned. Proof of abandonment based
on nonuse of a public road must be by clear and convincing evidence.
There is little evidence indicating that the public ceased using the
unnamed road to access the Tallapoosa River before 1974, and certainly
not evidence of a particular 20-year period of nonuse. Also, as noted
above, there was evidence of continuing public use of the unnamed road, 32 CL-2022-0848 & CL-2022-0854
including the part designated County Road 968, for purposes of accessing
the Tallapoosa River, particularly from the 1970s through a few years
before trial. See Autry v. Clarke Cnty., 599 So. 2d 590, 591 (Ala. 1992);
see also Bownes v. Winston Cnty., 481 So. 2d 362, 363-64 (Ala. 1985)
(discussing " '[t]he ancient maxim, "once a highway, always a highway" ' "
(quoting 39 Am. Jur. 2d Highways, Streets and Bridges, § 139 at 512-13
(1968))). The failure of county authorities to maintain a road does not
require a finding of abandonment by the public. See Auerbach v. Parker,
544 So. 2d 943, 946 (Ala. 1989). Likewise, the fact that travel on the road
may have decreased does not require a finding of abandonment. Id.
(stating that the Auerbachs "in recent times have used the road mainly
on weekends for recreation, the game warden and Auerbach employees
also use the road to reach the Auerbach property. Thus, the road is open
for use, albeit infrequently."). See also Laney v. Garmon, 66 So. 3d 766,
769 (Ala. Civ. App. 2010) ("The testimony in this case shows that before
Garmon blocked access to the disputed roadway in 2000, it was
infrequently used, it was in a bad state of repair, and it was not
maintained by the county. However, even the combination of those facts
is insufficient to prove by clear and convincing evidence that the disputed 33 CL-2022-0848 & CL-2022-0854
roadway had been abandoned as a public road."). In conclusion, based on
the evidence presented at trial, the trial court was not required to
conclude that what it determined to be County Road 968 had been unused
by the public for 20 years, whether that period was measured as
beginning before or after 1974. See Bownes, supra.
The June 2022 judgment is affirmed.
CL-2022-0848 -- AFFIRMED.
CL-2022-0854 -- AFFIRMED.
Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.