Aman v. Gilley

To the extent the main opinion concludes that the Gilleys’ claim for a prescriptive easement had been submitted to the trial court by implied consent, pursuant to Rule 15(b), Ala. R. Civ. P., or, alternatively, that the trial court in its discretion could have reached that conclusion, I disagree. See 55 So.3d at 251. I agree with the reasoning on this issue set forth in Judge Murdock’s special writing in Aman v. Gilley, 55 So.3d 235 (Ala.Civ.App.2005) (Murdock, J., concurring in the result).

In his special writing, Judge Murdock stated, in essence, that, when a litigant’s evidence supports the…