Alabama Easements, Landlocked Land and Eminent Domain (2026)

In Alabama, a prescriptive easement requires use of another person's land for 20 years or more that is adverse, exclusive, continuous and uninterrupted, under a claim of right, a rule the Alabama Supreme Court set out in Bull v. Salsman (1983). On eminent domain, statutes Alabama enacted in 2005 in response to Kelo bar the state, cities, counties and their agencies from taking property for nongovernmental retail, office, commercial, residential or industrial development or use, with exceptions for blight takings under redevelopment or urban renewal plans and for utilities, and with takings for streets and roadways, government buildings, and parks left in place (Ala. Code § 18-1B-2(a); §§ 11-47-170(b), 11-80-1(b)).

This page covers both halves of Alabama law: easements between private landowners first, then the government's power to take private property. For other states, see our guide to easement laws by state.

Information last verified on 2026-10-19. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers Alabama law on private easements (court decisions on prescription and necessity; Ala. Code Title 18, chapter 3 on rights-of-way to landlocked land; recording and conservation easement statutes in Title 35) and on the condemnation of private property (article I, section 23 and article XII, section 235 of the Alabama Constitution of 2022; the Eminent Domain Code, Title 18, chapter 1A; the 2005 limits in chapter 1B and sections 11-47-170 and 11-80-1; state relocation payments in chapter 4; the condemnation powers of utility, pipeline and industrial corporations in Title 10A, chapter 21). It does not cover adverse possession of title (see Alabama squatters' rights and adverse possession), HOA covenants, zoning or regulatory takings, utility and pipeline licensing statutes, federal condemnation (see eminent domain laws by state), or city and county ordinances.

Prescriptive Easements in Alabama: 20 Years of Adverse Use

A prescriptive easement is a right to keep using a path, driveway or other part of someone else's land that arises from long use rather than from a written grant. In Alabama the period and the elements come from case law. The Alabama Supreme Court stated the rule in Bull v. Salsman, 435 So. 2d 27 (Ala. 1983):

"To establish an easement by prescription, the claimant must use the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner. The presumption is that the use is permissive, and the claimant has the burden of proving that the use was adverse to the owner."

Two points stand out. Every element must be present for the full 20 years, and the starting presumption favors the landowner: use is generally treated as permissive until the claimant proves it was adverse. In the same case the court explained that the exclusive element "does not mean that it be to the exclusion of" the landowners, but that the claimant's claim "was independent of any other claim."

The presumption has a recognized exception. In Riley v. Boles (Ala. 2024), the Alabama Supreme Court noted its holding in Belcher v. Belcher (1969) that, when the claimed right-of-way was "the only means of vehicular ingress and egress" to the claimant's property, the owner of the right-of-way "was charged with presumptive knowledge of the adverse use." Riley also held that a claimant who has not used the way for the full 20 years may add, or "tack," the use of his predecessors in title, but not use by a person who was merely a licensee and never held title that could pass to the claimant.

The same presumption appears in disputes over claimed public roads. In Osborn v. Champion International Corp., 892 So. 2d 882 (Ala. 2004), the Alabama Supreme Court quoted its earlier statement in McInnis v. Lay (1988): "Where a road runs over wooded or 'unimproved' land, or land which, though once reclaimed, has been 'turned out' or left open and unused, 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."

Adverse possession of title is a separate doctrine with different rules. Under Ala. Code § 6-5-200(a), adverse possession cannot confer or defeat title unless the possessor shows a deed or color of title recorded for 10 years, annual tax listing of the land for 10 years, or title by descent or devise from a predecessor who was in possession. Our page on Alabama squatters' rights and adverse possession covers that doctrine.

How to Stop a Prescriptive Easement From Forming

Because Bull v. Salsman requires use "adversely to the owner" and presumes use is permissive, use that rests on the owner's permission does not meet the adverse element.

Alabama's Code provisions on adverse possession (§§ 6-5-200 to 6-5-211), recording (§§ 35-4-50 to 35-4-53 and 35-4-90) and recreational use of land (§§ 35-15-1 to 35-15-5 and 35-15-20 to 35-15-25) contain no posted-sign or recorded-notice procedure for blocking a prescriptive easement.

The recreational-use article does address permission to enter. Ala. Code § 35-15-5 states: "Nothing in this article shall be construed as granting or creating a right for any person to go on the lands of another without permission of the landowner."

Landlocked Property: Alabama's Statutory Right-of-Way

Alabama gives the owner of landlocked land a statutory route to a public road. Ala. Code § 18-3-1 provides:

"The owner of any tract or body of land, no part of which tract or body of land is adjacent or contiguous to any public road or highway, shall have and may acquire a convenient right-of-way, not exceeding in width 30 feet, over the lands intervening and lying between such tract or body of land and the public road nearest or most convenient thereto provided written approval is obtained from the municipal government and the planning board of such municipality."

Section 18-3-1 was last amended in 1982 (Acts 1982, 2nd Ex. Sess., No. 82-784), and its text does not say how it applies to land outside a municipality. In Bull v. Salsman, the Alabama Supreme Court described §§ 18-3-1 through 18-3-3 as provisions "which allow the owner of a tract of land not within a municipality to acquire a right of way if his land is not adjacent to any public road."

The statute limits where the road can go and who pays. Under § 18-3-2, "no road or right-of-way shall be established through any person's yard, garden, orchard, stable lot, stable, gin house or curtilage without the consent of the owner; and the applicant must pay the owner for the value of the land taken and compensation for damage to the land."

The owner seeking the right-of-way applies "to the probate court of the county in which the lands over which such right-of-way is desired, or a material portion thereof are situated, and the same proceedings shall be had as in cases of condemnation of lands for public uses" (§ 18-3-3). The Eminent Domain Code's pre-suit appraisal, offer and moving-notice rules (§§ 18-1A-21 to 18-1A-30) "shall not apply to the purchase of lands under Chapter 3 of this title" (§ 18-1A-20(c)). The Bull court likewise stated that "[t]he statutory action to acquire a right of way must be brought in the probate court."

A narrower statute covers family cemeteries. Where a cemetery has been used by the public for burials for 20 years or more and no part of it adjoins a public road, a person with relatives buried there may acquire "a convenient right-of-way, not exceeding in width 15 feet" to the nearest or most convenient public road (Ala. Code § 18-3-20; see §§ 18-3-21, 18-3-22).

Easement by Necessity Under Alabama Common Law

Apart from the statute, Alabama recognizes a common-law way of necessity. The Alabama Supreme Court explained in Bull v. Salsman that it "is a type of easement by implication and 'rests on the implication that the parties intended and agreed to provide for such a way.'"

The key requirement is a shared original owner. The court stated that "'[o]riginal unity of ownership of the dominant and servient tenements is always required for an easement of necessity,'" and that this requirement "is somewhat qualified, however, by the provisions of Code 1975, §§ 18-3-1 through 18-3-3."

Written Easements, Recording and Conservation Easements

An easement can also be granted in writing. Alabama's statute of frauds makes void "every contract for the sale of lands, tenements or hereditaments, or of any interest therein," other than leases of one year or less, unless it or a memorandum of it is in writing and signed by the party to be charged, or the purchase money is at least partly paid and the purchaser is put in possession by the seller (Ala. Code § 8-9-2(5)). Alabama's recording statute, Ala. Code § 35-4-90(a), provides that "All conveyances of real property, deeds, mortgages, deeds of trust, or instruments in the nature of mortgages to secure any debts are inoperative and void as to purchasers for a valuable consideration, mortgagees, and judgment creditors without notice, unless the same have been recorded before the accrual of the right of such purchasers, mortgagees, or judgment creditors." To look up recorded deeds and instruments affecting a parcel, see our guide to Alabama property records.

Conservation easements have their own statute. Under Ala. Code § 35-18-2(a), "Except as otherwise provided in this chapter, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements." The same subsection provides that a conservation easement "may not be created or expanded under this chapter by any state, county, or local governmental body through the exercise of the power of eminent domain."

Its term is set by § 35-18-2(c): "Except as provided in subsection (b) of Section 35-18-3, the term of a conservation easement shall be the term stated in the instrument creating the easement or, if no term is stated, the lesser of 30 years or the life of the grantor, or upon the sale of the property by the grantor."

How an Easement Ends in Alabama

No Alabama statute discussed on this page sets a period of nonuse after which an ordinary private easement ends. The Alabama Supreme Court has stated that "an easement given for a specific purpose terminates as soon as the purpose ceases to exist, is abandoned, or is rendered impossible of accomplishment" (Tatum v. Green, 535 So. 2d 87 (Ala. 1988)). In Sasser v. Spartan Food Systems, Inc., 452 So. 2d 475 (Ala. 1984), the court applied that rule to hold that an access easement was "forever extinguished" once a new street extension served the purpose the easement had been given for.

For conservation easements, § 35-18-2(a) provides that one may be "released, modified, terminated, or otherwise altered or affected in the same manner as other easements," and § 35-18-3(b) preserves a court's power to modify or terminate one under the principles of law and equity applicable to other easements, "specifically including the doctrine of changed conditions." When an easement is given up in a signed and recorded deed, Alabama's deed and recording formalities apply; see our page on the Alabama quitclaim deed.

Eminent Domain in Alabama

Eminent domain is the power of the state, and of bodies the legislature authorizes, to take private property for public use on payment of just compensation. For other states and federal law, see our guide to eminent domain laws by state.

Article I, section 23 of the Alabama Constitution of 2022 provides in part:

"private property shall not be taken for, or applied to public use, unless just compensation be first made therefor; nor shall private property be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner; provided, however, the legislature may by law secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved; but just compensation shall, in all cases, be first made to the owner"

A second provision, article XII, section 235, reaches cities and other condemnors and covers damage as well as takings: "Municipal and other corporations and individuals invested with the privilege of taking property for public use, shall make just compensation, to be ascertained as may be provided by law, for the property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements, which compensation shall be paid before such taking, injury, or destruction." Section 235 also bars the legislature from denying an appeal from a preliminary assessment of damages and provides that on appeal the amount of damages shall, "on demand of either party, be determined by a jury." The Alabama Supreme Court "consistently has held that § 235 does not apply to the State" (Willis v. University of North Alabama, 826 So. 2d 118 (Ala. 2002), where the condemnor was a state university).

The procedure is in the Eminent Domain Code, Title 18, chapter 1A. Section 18-1A-2(a) states that the chapter "provides standards for the acquisition of property by condemnors, the conduct of condemnation actions, and the determination of just compensation. It does not confer the power of eminent domain, and does not prescribe or restrict the purposes for which or the persons by whom that power may be exercised." Under § 18-1A-2(b), the chapter prevails over any conflicting law on a subject it governs.

Easements are property under the Code. Section 18-1A-3(17) defines real property as "Land and any improvements upon or connected with land; and includes an easement, servitude, or other interest therein."

Alabama's Post-Kelo Limits on Taking Property for Private Development

In Kelo v. City of New London (2005), the U.S. Supreme Court held that a taking under a city's economic development plan satisfied the Fifth Amendment's public use requirement and emphasized that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power."

Alabama responded the same year with Act 2005-313. Its statement of intent, Ala. Code § 18-1B-1, says the Legislature meant to ensure that governmental bodies may not use eminent domain "to take the private property of any person for the private use of another, as opposed to the use thereof by the public generally, except as and in the limited circumstances set out in this chapter and Sections 11-47-170 and 11-80-1."

The central rule is Ala. Code § 18-1B-2(a), as amended by Act 2015-39. It provides that the state, its agencies and entities, and any entity organized by or under the control of a municipality or county that holds eminent domain power may not "condemn property for the purpose of nongovernmental retail, office, commercial, residential, or industrial development or use or to primarily condemn a mortgage or deed of trust."

The same subsection sets out three carve-outs:

• Blight. The bar does not apply to eminent domain "by any county, municipality, housing authority, or other public entity based upon a finding of blight in an area covered by any redevelopment plan or urban renewal plan pursuant to Chapters 2 and 3 of Title 24, provided the purpose of the exercise of the powers of eminent domain pursuant to Chapters 2 and 3 of Title 24 is not primarily to acquire a mortgage or deed of trust."
• Utilities. The bar does not apply "to the exercise of eminent domain by or for the benefit of public utilities or other entities engaged in the generation, transmission, or distribution of telephone, gas, electricity, water, sewer, or other utility products or services."
• Public facilities. "Nothing in this section shall be interpreted to prohibit the state or a municipal or county governing body from exercising the power of eminent domain for the purpose of constructing, maintaining, or operating streets and roadways, government buildings, or park and recreation facilities."

For cities and counties, Ala. Code §§ 11-47-170(b) and 11-80-1(b) state the limit in similar terms and add to it: "Notwithstanding any other provision of law, a municipality or county may not condemn property for the purposes of private retail, office, commercial, industrial, or residential development; primarily for enhancement of tax revenue; for transfer to a person, nongovernmental entity, public-private partnership, corporation, or other business entity; or for the primary purpose of acquiring a mortgage or deed of trust."

If Condemned Land Is Never Used

Three statutes give a former owner a first chance to buy back condemned land that is never used for the purpose for which it was condemned or for some other public use and is later to be sold: § 18-1B-2(b), for property condemned by the State, its agencies and entities organized by or under the control of a city or county, and §§ 11-47-170(c) and 11-80-1(c), for cities and counties. The property "shall be first offered for sale to the person or persons from whom the property was condemned, or his or her known or ascertainable heirs or assigns, at the price which was paid for the property, less such amount, if any, as the person shall show by good and sufficient documentation to be the amount of income and transaction taxes, if any, actually paid in connection therewith" (§ 18-1B-2(b)). If the offer is not accepted within 90 days from the date it is made, the property may be sold to others "but only at public sale after legal notice is given."

Since 2025, an owner whose parcel an abandoned county or city road runs through may petition the county or municipality that owns the road to deed the road property back, if the government acquired the right-of-way from the private owner of the land on both sides to build the road, the original or current owner owns both sides, the road has been abandoned and no longer serves its original purpose "due to certain unforeseeable conditions rendering the road unusable," and the owner can close to the midline of the right-of-way. The petition must be granted unless another adjacent owner would lose road access, the road provides or could provide access to (or is) an existing or planned greenway trail under the Alabama Sweet Water Trails Project, or the county or city can articulate a future use consistent with the use stated when it acquired the property. The rule does not apply to the State or the State Department of Transportation (Ala. Code § 23-1-45(b), as amended by Act 2025-426).

Can Alabama Take Land for a Pipeline or Utility Line?

The 2005 limit does not reach utility projects. As quoted above, § 18-1B-2(a) does not apply to eminent domain exercised by or for the benefit of entities engaged in the generation, transmission or distribution of telephone, gas, electricity, water, sewer or other utility products or services.

The Constitution also lets the legislature "secure to persons or corporations the right of way over the lands of other persons or corporations" (art. I, § 23), with compensation first made, and article XII, section 235 requires corporations and individuals with the power to take property to pay, before the taking, for property "taken, injured, or destroyed" by their works; section 235 does not apply to the State (Willis v. University of North Alabama, 2002). Under Ala. Code § 18-1A-270, the state, counties, municipalities, the University of Alabama, Auburn University, the University of Montevallo, "any corporation organized under the laws of this state, or any person or association of persons, proposing to take lands, or to acquire an interest or easement therein, for any uses for which private property may be taken" may apply to the probate court for an order of condemnation, "if there be no other mode of proceeding prescribed by law." Title 10A grants that power directly. Corporations formed to build or operate gas or electric works, pipelines or any other work of internal improvement or public utility "may exercise the power of eminent domain in the manner provided by law" (Ala. Code § 10A-21-2.01), and pipeline and utility companies may condemn rights-of-way "not exceeding 100 feet in width" (§ 10A-21-2.05). The statute that bars most corporations from building a line through the yard or curtilage of a dwelling house, garden, stable lot or barn without the owner's consent expressly excepts "railroad companies, pipeline companies, and public works companies" (§ 10A-21-2.06), so the yard and curtilage rule for landlocked-land rights-of-way in § 18-3-2 is not a guide to pipeline routes. Mining, manufacturing, industrial, power and quarrying companies may also condemn rights-of-way up to 100 feet wide for pipelines and transmission lines under § 10A-21-2.04, but not a private residence or the outhouses, garden or orchard within its curtilage, and not until the Alabama Public Service Commission issues a certificate.

What the Condemnor Must Do Before Filing Suit

The Eminent Domain Code sets pre-suit duties:

• Appraisal. Before commencing a condemnation action, the condemnor must have the property appraised, and "The owner or his representative shall be given a reasonable opportunity to accompany the appraiser during the inspection of the property" (§ 18-1A-21).
• Offer. The condemnor must establish an amount based on an appraisal (the State or a political subdivision may instead use a waiver valuation for a donated property, or, with the owner's written consent, for a low-value acquisition, § 18-1A-22(e)) and "promptly shall submit to the owner an offer to acquire the property for the full amount so established" (§ 18-1A-22(a)(1)).
• Written basis. The condemnor must give the owner "a written statement and summary, showing the basis for the amount it established as just compensation for the property" (§ 18-1A-22(d)(1)).
• Uneconomic remnant. If acquiring only part of a property would leave the owner with an uneconomic remnant, "the condemnor shall offer to acquire the remnant concurrently" (§ 18-1A-27(a)).
• Offer to purchase before suit. "An action to condemn property may not be maintained over timely objection by the owner unless the condemnor has offered to acquire the property on the basis of its approved offer by purchase before commencing the action" (§ 18-1A-55).

These protections can be lost by inaction. Under § 18-1A-31, unless inconsistent with another applicable statute or regulation, a failure to satisfy §§ 18-1A-20 through 18-1A-30 "Is waived by the failure of the property owner, in the exercise of reasonable diligence, to object to or seek relief based upon noncompliance," and may also be waived by written agreement. Section 18-1A-55 itself turns on a "timely objection."

Moving deadlines are also regulated. "Except in an emergency, a condemnor may not require a person lawfully occupying property to move from a dwelling, nor to move his business or farm operation, unless he has received written notice from the condemnor at least 90 days before the date by which the move is required" (§ 18-1A-24).

How an Alabama Condemnation Case Works

Probate court filing. "A condemnation action is commenced by filing a complaint for condemnation with the probate court in the county in which the property or any part thereof sought to be taken is located" (§ 18-1A-71). The probate court must then enter an order appointing a hearing day and send the defendants a copy of the complaint and notice of that day, unless notice is waived (§ 18-1A-74(a)).

Challenging the right to take. The owner "may respond by answer but is not required to do so unless defendant challenges the right to condemn or questions or disputes the area to be acquired or remain" (§ 18-1A-90). Preliminary objections may raise any available ground, including that the condemnor "is not lawfully entitled to take the defendant's property for the purpose described in the complaint" or that "A mandatory condition precedent to the commencement or maintenance of the action has not been satisfied" (§ 18-1A-91(b)). The probate court hears them "before final determination of the amount of just compensation" (§ 18-1A-93). The probate court must hold its hearing on the complaint within 45 days after the complaint is filed (unless the hearing is continued), hear "any objections which may be filed to the granting thereof" at that hearing, and grant or refuse the complaint within 10 days afterward (§ 18-1A-276); if it grants the complaint, it appoints three commissioners within 10 days (§ 18-1A-279). Objections are heard at that hearing, so the hearing day in the court's notice matters. The condemnor has the burden of proof on fact issues raised by a preliminary objection, but an owner who alleges fraud, corruption, bad faith or gross abuse of discretion must prove it "by clear and convincing evidence" (§ 18-1A-94).

Commissioners' award. Commissioners must report the damages and compensation they assess "within 20 days from their appointment," and "within seven days, the probate court must issue an order that the report be recorded and the property be condemned upon payment or deposit into the probate court of the damages and compensation so assessed" (§ 18-1A-282). Notice of the order and the award is mailed to each party whose address is known, together with notice of "the right to appeal therefrom to the circuit court within 30 days from the date of said order."

Appeal and jury trial. "Any of the parties may appeal from the order of condemnation to the circuit court of the county within 30 days from the making of the order of condemnation by filing in the probate court rendering that judgment a written notice of appeal," and the trial on appeal is de novo (§ 18-1A-283). In circuit court, compensation is decided "by a jury only if a party entitled to participate in the trial of the issue expressly demands trial by jury" (§ 18-1A-151(a)). An owner who wants a jury has to ask for one. A further appeal from the circuit court's final judgment must be filed within 42 days, to the Court of Civil Appeals where the amount involved, exclusive of interest and costs, does not exceed $10,000 and otherwise to the Supreme Court (§ 18-1A-288).

Possession and title. An owner "shall not be required to surrender possession of property before the condemnor: (1) Pays the agreed purchase price; or (2) Pays, or deposits in accordance with this chapter, the amount awarded by the condemnation order" (§ 18-1A-23). An appeal does not by itself keep the condemnor off the land. No appeal suspends the judgment or the right of entry if the condemnor has paid the assessed damages into probate court and given a bond "in double the amount of such damage" (§ 18-1A-284), and a condemnor that deposits the assessed award and costs in circuit court is "entitled to enter upon the lands so condemned and to survey, construct, and operate on the same" while the appeal is pending. Title still "shall not vest absolutely" in the condemnor "until the final determination of the cause and the payment or deposit in circuit court of such damages and compensation as shall then be adjudged" (§ 18-1A-289).

Withdrawing money. "At any time after payment of the award and before entry of judgment, the defendant by motion may withdraw the amount of the condemnor's approved offer" (§ 18-1A-110). If there is an appeal, the condemnor must pay interest on any part of the award deposited in probate court and not made available to the owner within 40 days of the order of condemnation, at the money-judgment rate in § 8-8-10 (§ 18-1A-30(b)).

Owner Deadlines and Traps in an Alabama Condemnation

How Just Compensation Is Calculated in Alabama

Fair market value. The Code defines it as "the price the property would bring when offered for sale by a willing seller who is not forced to sell and which is sought by a willing buyer who is not required to buy, after due consideration of all the elements affecting value" (§ 18-1A-172).

Project influence. Fair market value "does not include an increase or decrease in value before the date of valuation" caused by the project for which the property is taken, by the reasonable likelihood that the property would be acquired for it, or by the condemnation action (§ 18-1A-173(a)), although a decrease caused by physical deterioration within the owner's reasonable control "and by his unjustified neglect" may be considered (§ 18-1A-173(c)). In a total taking, the condemnor's pre-suit offer must likewise disregard project-caused changes in value, "other than normal depreciation" (§ 18-1A-22(b)).

Valuation date. The valuation date is "the date on which the application for order of condemnation is filed in the probate court or the date of taking of or damage to property by the condemnor, whichever date first occurs" (§ 18-1A-3(19)).

Partial takings. "If there is a partial taking, the valuation rule is the difference between the fair market value of the entire property before the taking and the fair market value of the remainder after the taking" (§ 18-1A-170(b)).

Benefits to the remainder. Compensation "must not be reduced or diminished because of any incidental benefits which may accrue to them or to their remaining lands," but the statute provides exceptions, including that in condemnations "for ways and rights-of-way for public highways, water or sewer lines, the commissioners or jury may" consider the value of the enhancement to the owner's remaining land (§ 18-1A-171).

Burden of proof. "No party has the burden of proof on the issue of the amount of compensation" (§ 18-1A-153).

Closing costs. As soon as practicable after paying the purchase price or paying or depositing the award, the condemnor must pay or reimburse reasonable and necessarily incurred recording fees, transfer taxes and similar conveyance expenses, penalty costs for prepaying a debt secured by a preexisting good-faith lien on the property, and the prorated property taxes for the period after title vests or possession passes, whichever is earlier (§ 18-1A-30(a)).

No home premium. The compensation sections of the Eminent Domain Code (§§ 18-1A-170 to 18-1A-174) set no percentage premium for a home and contain no separate item for business goodwill or lost profits.

Attorney Fees, Costs and Interest

The Code uses the term "litigation expenses," defined as "The sum of the costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, necessary to prepare for anticipated or participation in actual probate or circuit court proceedings" (§ 18-1A-3(12)). The provisions covered here award them in these situations:

• Dismissal. "The court shall award the defendant his litigation expenses, in addition to any other amounts authorized by law, if the action is wholly or partly dismissed for any reason" (§ 18-1A-232(a)). Under § 18-1A-230, the court must dismiss on the owner's motion, as justice requires, on sustaining a preliminary objection, if the condemnor has unjustifiably failed to prosecute with reasonable diligence, or if it fails to pay the full judgment within the time allowed. If the land to be taken is reduced by a partial dismissal or a judgment that the condemnor cannot take part of it, the court awards the litigation expenses attributable to the part dropped (§ 18-1A-232(b)).
• Sustained preliminary objection. The probate court "in the interest of justice may require the plaintiff to pay to the defendant all or part of his litigation expenses incurred because of the plaintiff's failure or omission constituting the basis of the objection," and an award "shall be included in the order if the probate court finds that the plaintiff acted or failed to act without justification" (§ 18-1A-95(b)).
• Inverse condemnation. A judgment or settlement compensating an owner in an inverse condemnation action "shall include the plaintiff's litigation expenses" (§ 18-1A-32(b)).
• Late payment. The condemnor may pay the assessed award within 90 days after the assessment, or within 60 days after an appeal is determined; if it does not, the assessment ceases to bind the owner, the complaint is dismissed, and the condemnor is liable for the owner's damages from the proceedings, "including a reasonable attorney's fee for defending the same" (§ 18-1A-290).
• Abandoned arbitration. If the condemnor abandons the acquisition after an arbitration agreement has been entered into, the owner recovers the litigation expenses recoverable on dismissal plus other reasonable arbitration-related expenses, including attorney, appraisal and engineering fees, unless the arbitration agreement expressly waives reimbursement (§ 18-1A-256(b)).

The condemnor bears the costs of the case. "The costs of the complaint and proceedings thereunder up to and through the entry of final judgment, including the compensation of commissioners, must be adjudged and assessed against the plaintiff" (§ 18-1A-293).

A judgment carries interest "at a rate equal to the most recent weekly average one-year constant maturity yield, as published by the Board of Governors of the Federal Reserve System, upon the unpaid portion of the compensation awarded," starting on the date of judgment, but generally not on money the condemnor deposited in probate court for the period after the deposit (§ 18-1A-211).

Relocation Payments

Alabama's relocation statute provides an additional payment for displaced homeowners in state-agency acquisitions. Under Ala. Code § 18-4-5(a), the state agency "shall make an additional payment not in excess of twenty-two thousand five hundred dollars ($22,500) to any displaced person who is displaced from a dwelling actually owned and occupied by the displaced person for not less than 180 days prior to the initiation of negotiations for the acquisition of the property." The payment is made only to a displaced person who buys and occupies a decent, safe and sanitary replacement dwelling within one year from the later of final payment for the acquired dwelling or the date the agency's obligation under § 18-4-12 is met, unless the agency extends the period for good cause (§ 18-4-5(b)). An occupant of at least 90 days who is not eligible under § 18-4-5 may receive a payment to rent a comparable replacement dwelling for up to 42 months, "not to exceed five thousand two hundred fifty dollars ($5,250)," which may instead be applied to a down payment (§ 18-4-6). The agency must also make relocation payments for actual reasonable moving expenses (§ 18-4-4(a)). The chapter applies only to state-agency acquisitions of owner-occupied residences for projects or programs using federal or state funds, and not to acquisitions "voluntarily initiated or negotiated by the seller under no threat of condemnation" (§ 18-4-3(a)). That chapter does not apply to the Alabama Department of Transportation if the department is required to provide relocation assistance under §§ 23-1-210 to 23-1-212 (§ 18-4-4(b)).

Relocation payments are separate from the condemnation award. Section 11-80-2(b) provides that nothing in that section creates, "in any condemnation proceedings brought under the power of eminent domain, any element of damages not in existence on March 10, 1975."

Under federal law, a state agency receiving federal financial assistance must give assurances that it will be guided "to the greatest extent practicable under State law" by the federal land acquisition policies (42 U.S.C. § 4655(a)).

Inverse Condemnation

When a condemnor takes or damages property without filing a case, the owner may sue in inverse condemnation. Section 18-1A-32(a) states that a condemnor "shall commence a condemnation action" to acquire property by eminent domain and "shall not intentionally make it necessary for an owner of property to commence an action, including an action in inverse condemnation, to prove the fact of the taking of his property." An owner's inverse condemnation judgment or settlement must include litigation expenses (§ 18-1A-32(b)). Section 18-1A-32 does not itself state a filing deadline for an inverse condemnation claim, but other statutes can supply one. Where the condemnor is a city or town, the Alabama Supreme Court has held that an inverse condemnation claim must "be presented to the clerk for payment within two years from the accrual of said claim or be barred" under Ala. Code § 11-47-23, and that "the cause of action accrues when the taking is complete" (McClendon v. City of Boaz, 395 So. 2d 21 (Ala. 1981)).

Alabama Easement and Eminent Domain Rules at a Glance

Related Alabama Property Guides

• Easement laws by state
• Eminent domain laws by state
• Alabama squatters' rights and adverse possession
• Alabama property records
• Alabama quitclaim deed

Disclaimer: This article provides general legal information about Alabama easement and eminent domain law. It is not legal advice. For a specific situation, contact a lawyer licensed in Alabama or the public agency involved.

Last updated: 2026-10-19.

Frequently Asked Questions

How long does it take to get a prescriptive easement in Alabama?

Twenty years or more. The Alabama Supreme Court requires use for that long, adverse to the owner, under claim of right, exclusive, continuous and uninterrupted, with the owner's actual or presumptive knowledge (Bull v. Salsman, 1983). Use is generally presumed permissive, and the claimant must prove it was adverse; where the road is the claimant's only vehicular access, the owner is charged with presumptive knowledge of the adverse use, and a claimant may add the use of predecessors in title, but not use by a mere licensee (Riley v. Boles, 2024).

What can I do if my land is landlocked in Alabama?

Ala. Code §§ 18-3-1 to 18-3-3 let the owner of a tract with no part adjoining a public road apply to the probate court for a right-of-way up to 30 feet wide, subject to the written-approval proviso in § 18-3-1 and the consent rule for yards, gardens and curtilage; the applicant pays for the land taken and the damage. A common-law way of necessity also exists, but it requires original unity of ownership (Bull v. Salsman).

Can someone get a prescriptive easement in Alabama if I gave them permission?

Use must be adverse to the owner, and Alabama generally presumes use is permissive, putting the burden on the claimant to prove adversity (Bull v. Salsman). Use that rests on the owner's permission does not meet the adverse element.

Can Alabama take my property for a private developer?

Ala. Code § 18-1B-2(a) bars the state, its agencies and entities organized by or under the control of a city or county from condemning property for nongovernmental retail, office, commercial, residential or industrial development or use. The bar does not apply to blight takings under redevelopment or urban renewal plans or to takings by or for utilities, and takings for streets and roadways, government buildings, and parks remain allowed. Sections 11-47-170(b) and 11-80-1(b) also bar cities and counties from condemning primarily to enhance tax revenue or to transfer property to a private person or business.

Can Alabama use eminent domain for a pipeline or utility line?

The 2005 limit in Ala. Code § 18-1B-2(a) does not apply to eminent domain exercised by or for the benefit of public utilities or other entities engaged in the generation, transmission or distribution of telephone, gas, electricity, water, sewer or other utility products or services. Title 10A separately gives corporations formed for pipelines, gas, electric and other public utility works the power of eminent domain, with rights-of-way up to 100 feet wide, and the rule against building lines through a yard or curtilage without the owner's consent expressly excepts pipeline companies (Ala. Code §§ 10A-21-2.01, 10A-21-2.05, 10A-21-2.06).

How long do I have to appeal an eminent domain award in Alabama?

Any party may appeal the probate court's order of condemnation to the circuit court within 30 days from the making of the order, by filing a written notice of appeal in the probate court (Ala. Code § 18-1A-283). The circuit court tries the case de novo, with a jury only if a party expressly demands one (§ 18-1A-151). An appeal does not by itself stop the condemnor from entering: it may enter pending appeal after paying the assessed damages into probate court with a bond in double that amount, or depositing the award and costs in circuit court (§§ 18-1A-284, 18-1A-289). A further appeal from the circuit court's final judgment must be filed within 42 days (§ 18-1A-288).

Does Alabama pay attorney fees in eminent domain cases?

The Eminent Domain Code awards the owner litigation expenses, including reasonable attorney, appraisal and engineering fees, when the action is wholly or partly dismissed (§ 18-1A-232) and in an inverse condemnation judgment or settlement (§ 18-1A-32). The probate court may also award them when it sustains a preliminary objection, and must if the condemnor acted without justification (§ 18-1A-95). A condemnor that does not pay the assessed award within the time allowed is liable for the owner's damages including a reasonable attorney's fee (§ 18-1A-290), and an owner whose acquisition is abandoned after an arbitration agreement recovers litigation and arbitration expenses unless the agreement expressly waives reimbursement (§ 18-1A-256).

How is just compensation calculated in Alabama?

Compensation rests on fair market value, defined as the price a willing seller not forced to sell would get from a willing buyer not required to buy (Ala. Code § 18-1A-172), and it excludes increases or decreases in value caused by the project, the likelihood of acquisition for it, or the condemnation action (§ 18-1A-173(a)). For a partial taking, compensation is the difference between the fair market value of the whole property before the taking and the fair market value of the remainder after it (§ 18-1A-170(b)). Incidental benefits generally are not deducted, but for rights-of-way for public highways, water or sewer lines the commissioners or jury may consider enhancement to the remaining land (§ 18-1A-171).