Sylvest v. Stowers, 3 Div. 127

• Citation: 276 Ala. 695,166 So.2d 423
• Decision Date: 30 June 1964
• Docket Number: 3 Div. 127
• Parties: J. B. SYLVEST v. Willie Walter STOWERS.
• Court: Supreme Court of Alabama

Page 423

166 So.2d 423

276 Ala. 695

J. B. SYLVEST v. Willie Walter STOWERS.

3 Div. 127.

Supreme Court of Alabama.

June 30, 1964.

Mooneyham & Mooneyham, Montgomery, for appellant.

Robt. B. Stewart, Jones, Murray & Stewart, Montgomery, for appellee.

MERRILL, Justice.

This is an appeal from a decree determining a boundary line between coterminous owners and giving effect to a purported agreement in the form of a suggested decree executed by counsel for both parties.

Appellee, Mrs. Stowers, filed a bill of complaint against appellant, Sylvest, to determine a disputed boundary between their adjoining lands. When the case was first set for trial, the parties reached a settlement which was reduced to writing in the form of a final decree, signed by counsel for both parties and mailed by counsel for appellee to the then trial court, Judge Hugh Maddox. Before the envelope containing the agreement was opened by Judge Maddox, counsel for appellant notified the court that the purported decree did not contain the agreement which had been reached by counsel, and Judge Maddox found that the decree did not reflect the understanding of the parties, but was based upon a misunderstanding, and restored the case to the trial docket.

When the cause came on for trial, Judge Maddox had resigned and the case was assigned to Judge Emmet. Appellee filed a motion to enforce the written settlement agreement, but the court reserved a ruling on the motion and proceeded to hear the case on its merits on December 18, 1963. Two days later, the court entered a decree finding for the appellee on the merits, and found further that the parties had entered into an agreement and gave 'full force and effect' to the agreement under Rule 14, Rules of Practice in the Circuit and Inferior Courts, Tit. 7, Appendix, Code 1940.

I. On The Merits

This is one boundary line case where there is no material conflict in the evidence. Appellant's land lies west and north of appellee's land. Appellant purchased his land in 1943. His deeds called for Lots 8, 9 and 10 and he was shown a fence which was pointed out as the line between his property and the adjoining 160 acres which was known as the McDade Exemption. Appellee purchased this 160 acres in 1945 and for over ten years there was no question but that the fence was the boundary between them. Appellee's son-in-law and agent, John A. Garrett, testified that each of the parties actually worked and farmed their lands up to the fence, they considered it to be their boundary and they each helped and contributed to its repair and maintenance, which Garrett said was a common practice in the county.

Appellant testified that he went into possession of the land west and north of the fence in 1943 when he purchased it; that he harvested hay on it, usually three times a year; that appellee harvested up to the fence on their side; that he intended to hold to the fence under the belief that the fence was the true property line, and that he claimed title to the fence as the land north and west of the fence had been pointed out to him as the land that was deeded to him.

Carl C. Harmon, a licensed, registered surveyor, testified that he had been employed by appellee to survey the land in 1959 and he finished the job in 1961. According to his survey, the true north line was south of the fence (thereby taking some acreage from Sylvest), and the true west line was west of the fence (thereby taking acreage from Stowers).

Under these undisputed facts, the trial court erred in holding that appellee was entitled to relief on the merits.

Where the question is a disputed boundary line between coterminous owners, the statutory evidentiary prerequisites of adverse possession are inapplicable. Tit. 7, § 828, Code 1940; Duke v. Wimberly, 245 Ala. 639, 18 So.2d 554; Stokes v. Hart, 273 Ala. 279, 139 So.2d 300, and cases there cited.

If a coterminous landowner holds actual possession of a disputed strip under a claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he thereby acquires title up to that line, even though the belief as to the correct location originated in a mistake, and it is immaterial what he might or might not have claimed had he known he was mistaken. Lay v. Phillips, 276 Ala. 273, 161 So.2d 477; McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160, and cases there cited; see Treadaway v. Hamilton, 221 Ala. 479, 129 So. 55.

In Salter v. Cobb, 264 Ala. 609, 88 So.2d 845, we said:

'As between coterminous landowners where a question of boundary line is presented, when parties agree upon the location of a line fence or one of them proceeds to enclose his property and erects a fence intended as a line fence and holds actual and exclusive possession to it as such, his possession is adverse and if continued for ten years ripens into title. The controlling fact is one of intention and if there is an inference arising from the evidence that there was an intention on the part of the complainant to hold and enjoy the property up to the line claimed by the complainant as the true dividing line between the property, with the assent or apparent recognition of it as such on the part of respondent and his predecessors in title for the stated period, this is sufficient to discharge the complainant's burden of proof. And if the possessor considered and claimed the land up to the established line as her own, the possession is hostile even though she is claiming more than she owns and claims by mistake of fact. Though the established division line might have been erroneous in fact, if it may be inferred that the fence was believed to be the true line and the claim of ownership was to the fence, the possession is adverse and "does not originate in an admitted possibility of a mistake." * * *'

Appellee concedes in brief that according to the 'recent opinion in Lay v. Phillips, 161 So.2d 477, the facts of our case would appear to justify the Respondent's claim to title under ten years adverse possession.' But reliance is placed upon a statement made by appellant on cross-examination. On both direct and cross-examination, appellant stated several times that he claimed to the fence because it had been pointed out to him as being the line when he purchased the land in 1943, and he had done so for nineteen years believing it to be the true boundary line. Counsel for appellee had asked several questions trying to get appellant to say that he did not intend to claim any property other than that described in his deed. As we have already shown, 'it is immaterial what he might or might not have claimed had he known he was mistaken,' but objections to these questions were overruled and finally the following occurred:

'Q If your deed called for 600 acres and if you are actually in possession of 600 acres, then, would you have ever or would you now claim 615 acres?

'MR. FLOYD MOONEYHAM: Objection, Your Honor.

'THE COURT: Overruled.

'THE WITNESS: If you are trying to get me to say had I known that this acreage belonged to Mrs. Stowers and she didn't get the deed to the other until three years later, when I bought the place, what would I have done if I had knowledge * * *

'MR. STEWART: Yes, sir.

'THE WITNESS: I would have helped her move the fence on up to the proper line.

'MR. STEWART: Yes, sir. That's just exactly what I thought you would say * * *

'THE WITNESS: But I had no knowledge of anything. It had never been called to my attention and my contention was and is now that I own up to the fence. The fence was pointed out to me as my line.'

Appellee contends that the statement, 'I would have helped her move the fence on up to the proper line', is an admission of the absence of intention to claim to the fence. We cannot agree.

This court has made it abundantly plain that one does not have to be a willful landgrabber or dishonest in order to acquire title by adverse possession. We quote from Brantley v. Helton, 224 Ala. 93, 139 So. 283:

'Adverse possession as between adjoining landowners, where a question of boundary line is presented, has been many times declared by this court. When the parties agree upon the location of a line fence, or one of them proceeds to inclose his property, and erects a fence intended as a line fence, holds actual and exclusive possession to it as such, his possession is adverse, and, if continued for ten years, ripens into title.

'If the location of the fence is merely tentative, not intended to define a permanent boundary, and possession is taken, not under claim of title to the fence, but merely to the true line, to be thereafter ascertained, such possession is not adverse.

'The controlling fact is one of intention. The mere fact that a mistake was made in locating the boundary, and there was never an intention to claim the property of another, does not negative adverse possession. Such a rule would make adverse possession to depend upon bad faith.

'Was there an intention to fix a dividing line, each to have the enjoyment of his own property, and was possession taken and held accordingly, each claiming the property held as his own, because he considered it his own? If so, the possession is adverse. Of course, adverse possession may arise from boldly and knowingly taking the property of another, or taking it regardless of whether he believes it is his, thus ousting the true owner, and holding...