Randolph County Commission v. Jeffery K. Landrum

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

v.

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
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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

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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).
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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)
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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.
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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
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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
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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."
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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
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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
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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
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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
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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.

34