
    70 So.2d 647
    BENSON v. PICKENS COUNTY et al.
    6 Div. 578.
    Supreme Court of Alabama.
    Jan. 14, 1954.
    Rehearing Denied March 11, 1954.
    John A. Altman, Carrollton, for appellant.
    
      Patton & Robison, Curry & Curry, Carrollton, for appellees.
   SIMPSON, Justice.

This is an appeal from a final decree denying relief and dismissing a bill filed by a property owner in possession, whose title is not in dispute, against Pickens County and its Board of Commissioners as such officials and as individuals. The bill as last amended charges that said defendants entered upon the lands of the complainant and cut a road across the same without complainant’s consent and without acquiring the right so to do or paying her compensation for the damages to her property. The bill seeks a declaratory decree as to the liability of the defendants for damages alleged to have resulted from their acts and for incidental relief.

The defendants contend that the county was merely reopening and improving an old public road which traversed the land of the complainant since the year 1912 after an order of the Court of County Commissioners of Pickens County had been entered on the minutes of the court on April 3, 1912, and pursuant to which' a public road was established. The stated entry on the minutes óf the court is merely a recital that all of the parties over or through whose land the road is to pass are in court and have agreed to its location and have “released their claims for damages or have been satisfied”; then follows a designation of the course the road is to take along the division lines between certain named individuals (one being complainant’s predecessor in title) and over the property of certain other named individuals. No other description of the roadway is embodied in the minute entry and nothing is mentioned with respect to the width of the proposed road or just how or whether the county acquired title to the roadway or the extent of that title.

Quite clearly the minute entry of 1912 standing alone and unaided by other proof going to show that the county had lawfully acquired a right of way over the lands of the complainant’s predecessor Hamner gave the county no grant so as to justify the opening up of the way as a public road. This case was once before this court on a matter of pleading and we there took occasion to refer to certain applicable principles with reference to the 1912 minute entry. See Benson v. Pickens County, 253 Ala. 134, 43 So.2d 113. The opinion pointed out that there was no contention that a right of way had been condemned by,the'county unde'r ,.its power of eminent domain and so far as we know the only other means of Obtaining a record title to land or án easement Over land from a landowner is by some form of written instrument either conveying, the roadway or dedicating it to public use^ which 'is not the case here. . The purported order standing .alone is no more than an ex parte recital of the Commissioners’ Court that the county proposed to establish or was' ordering "the establishment' of a -road along; a certain route. Wlieth.er the county later acquired • a right of way along that route;by eminent ■domain or. by prescription ordedication from the property owners does not appeap. .The stated- minute .entry ''therefore- cannot ■serve as a .basis for the-defendants’ entry ■upon complainant’s-land,i.

Nor does the .said -.entry-.-without •more* establish that there -had-,-beeli-.a, common law. dedication by the .former owner .of .-any land, for a public road'. ¿Laying* aside the fact that no showing.is.made .thkt; the complainant’s; predecessor-:.ih ;titie in -1912, when-the order-was made; :had..agreed that -the road-be .opened .up;.there ris/nq sufficient . description-.with respect toThe-width.-of-ithe proposed road to form the. basis, of- a-.'dedication.' --“To constitute a good--common-lkw dedication .a- definite and certain-description of that which- is proposed to be.'-dedidat'ed. is necessary.- - -The; instrument' relied- on:.as -dedicating- property :shouldVshow-;onvits •face at least'enough"to enable a competent surveyor to find with absolute certainty that which is assumed'to be conveyed. * * *” 26 C.J.S., Dedication, § 14; p. 68; City of Huntsville v. Gross, 223 Ala. 205, 135 So. 462.

The stated order, therefore, being inefficacious' to. justify a trespass ' against one in the peaceable possession of Hand against 'objection 'and protest by the-occupant, the only other defense-available to'the defendants was that the' róád had - beén established as a public road by. prescription by reason of its continuous use -by fhé public 'as a roadwáy without let or hindrkrice’for a period of twenty years. No mention of the roadway appears in the deed conveying -the property to- the complairiáñt-arid'-on fhé issue posed we think-the-evidenceis entirely unsatisfactory to '-Substantiate '••the -claim-'ot 'a-public road by prescfiptiOn.'RTrue; thferfe was a “dim’’ way which travéfsé'd''the-complainant's property along ¿-part’-b’f the route described in the 1912'order and- tírete was evidence that' in 1912-some ■ character' of 'road had been operiéd-úp -along that’-route, but the land over-which-the-Why'-rañ was wild, unused; unenclosed land- 'ahd-for moré than-twqnty..,years hqs. bee.n-little used,.j-f at all, and had grown'up in., tree’s and bushes and had .practically disintegrated in parts 'into gulleyS"kn'd.ditches;'’ari'd'tftís tdhdition had''existed* for 'marty/^ndariy'-'yekf^;' Thé ;prdóT further; indicates;that The;roadway 'was never used tO''mucK''éxtent''kfid'in late 'years had beén practicaíly''ábáriddri'edi-';Thé 'two commissioners Of.the' district 'where'the lands involved are' located fé's'tified'thñt’during their Tenure''i'ri".office;; eit'eriding from 'about 1925 to í'938L'thé''courit^-;ahthbfities had never worked the road'nor.was it known "as'á' public' road. Tt never" Was'"any'-real through'- Way Of "an essential link between "definite'objectives; nor "did it serve the neighborhood to'an'y"degree;' there" was'no-proof" o'f-any. distinct "claim by"tile few who "are said to. llave traveled On it.'.int'érmittently 'of.a.right adverse to the Owner,the evidence was consistent' with a' peitriissiye use.

. It is the'established'law, of‘course, That'an open defined'roadway in cdritinuous ' Usé by the 'general, public as'a" highway with- . out let or-hindrance fot a period'df" twenty 'years becomes 'a public highway by- prescription and'if'the-landowner claims The ,ji'se is permissive' only the burden'is on''him ;t'o show it'.' Central of Georgia R. Co. v. Faulkner, 217 Ala. 82, 114 So. 686; Scruggs v. Benson, 246 Ala. 405, 20 So.2d 774.

. But’this, principle’ has been held to be limited in its application to “well-de’firiéd highways running over improved or reclaimed lands, and is--not 'applicable to wooded or unimproved lands, or lands ’ which, though once reclaimed, have been ‘turned out,’ or left open • and triluséd.” Locklin v. Tucker, 208 Ala. 155-156, 93 So. 896, 897. In such latter case there-user without tending to show adverse user under claim of right does not raise a presumption of dedication. Locklin v. Tucker, supra; Trump v. McDonnell, 120 Ala. 200, 203, 24 So. 353; Rosser v. Bunn, 66 Ala. 89, 94. As was said in Merchant v. Markham, 170 Ala. 278, 280, 54 So. 236, 237 (principle later . held. to be limited in application to wooded, unimproved or open, unreclaimed land Locklin v. Tucker, supra):

“The doctrine of prescription applies to public roads, but when a public road is sought to be declared, by prescription, the burden is on the complainant to •show, not only the continuous user for 20 years, but that the road was used as a matter of right, and not merely by permission of the landowners. Indeed, when there are certain statutory requirements for establishing public roads, and when the.overseers of roads may be required to work all public roads, it would seem that, in the absence of any recognition by the public authorities, it would take very clear proof to rebut the presumption that a user is merely permissive in this country where it is common knowledge that roads are frequently used, merely as a matter of convenience, and with no intention of their being dedicated to the public * * * .”

So in. the instant case we think that in view of the desultory use — indeed almost non-user — of the “dim” way for so many years and the fact that the public authorities gave no recognition of the way — if so it could be called — by working it or exercising .acts of ownership, over it for more than twenty. years, -it would take clearer proof than has been brought forth to rebut the presumption that the use was merely permissive.

We entertain the view, therefore, that the learned trial court failed to give application •of the controlling principles enunciated above to the facts adduced and of consequence must order a reversal of the decree.

Reversed and remanded.

LIVINGSTON, C. J.,.and GOODWYN and ..CLAYTON, JJ., concur... . , .  