In Ex parte Michael J. Gilley and Susan Helms Gilley, [Ms. 1041904, May 14, 2010] __ So. 3d. __ (Ala. 2010), the Alabama Supreme Court held that because there was evidence in the record from which the trial court could have determined that the defendants had a prescriptive easement over disputed property, the ore tenus rule applied and the trial court's findings could not be disturbed on appeal "unless they were clearly erroneous or manifestly unjust." The Alabama Court of Civil Appeals had previously held that there was no evidence to rebut the presumption that the defendants' use of the disputed property was prescriptive. Because such evidence did exist in the record, the decision of the Alabama Court of Civil Appeals was reversed as a violation of the ore tenus rule.
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