Key v. Allison, 70 So. 3d 277

A long-standing public boardwalk runs along bayfront properties from south of Zundel's Lane to the Grand Hotel, across multiple private properties.
The boardwalk historically allowed public access for over 100 years; landowners maintained portions across their land, with no formal permission sought by the public.
Allison owns the bayfront property north of Zundel's Lane and has physically blocked public access by closing a fence gap after stacking boards from hurricane damage on the boardwalk on her property.
Key lived nearby and regularly used the boardwalk; he sought a declaration that the boardwalk is a dedicated public walkway and that he could repair and access the portion crossing Allison's property.
The trial court entered judgment for Allison, finding no private or public easement by dedication or public use; Key appealed, and the case was tried ore tenus with no findings of fact by the court.
The Alabama Supreme Court reversed and remanded, determining that a prescriptive public easement had arisen in the first 20 years of the boardwalk’s existence and that the trial court erred in failing to recognize that presumption.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a public prescriptive easement existed	Key asserts 20-year uninterrupted use created a public easement.	Allison contends use was permissive; no evidence of adverse use for 20 years.	Presumption of dedication arose; use during first 20 years was adverse.
Whether the burden shifted to Allison to prove permissive use	Osborn presumption applied, placing burden on Allison to show permissive use.	Allison argued public use was permissive with permission from predecessors.	Burden shifted to Allison; no evidence showing permissive use in first 20 years.
Whether the trial court could determine the nature of use given undisputed facts	ore tenus standard did not apply to undisputed evidence; de novo review.	Trial court’s factual findings control if supported by evidence.	Evidence undisputed; de novo review; error in trial court’s conclusion.
What is the appropriate remedy and duty of maintenance if a public easement exists	Boardwalk is dedicated public use requiring Baldwin County to maintain.	No explicit remedy determined; duty remains to be decided on remand.	Remand to determine duty to maintain the dedicated portion.

Osborn v. Champion Int'l Corp., 892 So.2d 882 (Ala. 2004) (public easement by prescription; burden on landowner to prove permissive use)
Newell v. Dempsey, 219 Ala. 634 (Ala. 1929) (prescriptive dedication principles)
Locklin v. Tucker, 208 Ala. 155 (Ala. 1922) (elements of prescriptive easement; open, continuous use)
Ayers v. Stidham, 260 Ala. 390 (Ala. 1954) (burden-shifting for public use of land)
Davenport v. Cash, 261 Ala. 380 (Ala. 1950) (definition of public way and current passage concept)
State v. Hill, 690 So.2d 1203 (Ala. 1996) (ore tenus standard and de novo review framework)
Ex parte J.E., 1 So.3d 1002 (Ala. 2008) (limits of ore tenus review; when to reweigh evidence)