Alford v. Rodgers

• Decision Date: 22 January 1942
• Docket Number: 3 Div. 349.
• Citation: 6 So.2d 409,242 Ala. 370
• Parties: ALFORD v. RODGERS.
• Court: Alabama Supreme Court

6 So.2d 409

242 Ala. 370

ALFORD v. RODGERS.

3 Div. 349.

Supreme Court of Alabama

January 22, 1942

Rehearing Denied March 5, 1942.

McMillan, Caffey & McMillan, of Brewton, for appellant.

H. C. Rankin, of Brewton, for appellee.

FOSTER Justice.

The question of legal importance in this case may be thus stated and explained. Plaintiff, suing to recover a small plot of land approximately two acres, asserts title acquired by adverse possession for the prescription period of twenty years without color of title, claim of purchase or inheritance, or other condition required by Title 7, section 828, Code of 1940, but upon the mistaken assumption that it was a part of a tract which he had bought and occupied throughout those years. He sold, conveyed and surrendered possession of the land according to the description by which he bought it, but such description did not include the plot of land in question.

The land bought and sold as described was in part immediately south of the disputed area, which separated it from the public road on the north. Plaintiff claimed to the road on the assumption that such was the north boundary line of his land, as did his grantor. But he concedes that it was not his north line, and such is necessary to support his present title, for he has sold his land as it was described in his purchase. Likewise defendant claims that it was not a part of plaintiff's land as purchased, and he claims it under a chain of title inconsistent with that idea. So that they both admit that the land is in section 11, immediately north of section 14, in which is situated the land included in plaintiff's deed. Each admit that the road is not the section line between 11 and 14, and that the disputed area is not in the description of the land sold by the plaintiff.

The question then is whether the acquisition of the land by adverse possession, or the fixation of plaintiff's north boundary line by adverse possession caused such area to be conveyed by plaintiff in the transaction we have stated.

It is of course well understood that as between respective claimants a boundary line may be established by adverse possession by which one party may thus acquire land extending to that line which would not otherwise have been his, and thereby may thus cause a strip of land to be attached to his holdings. Brantley v. Helton, 224 Ala. 93, 139 So 283; Branyon v. Kirk, 238 Ala. 321, 191 So. 345. See Code of 1940, Title 7, section 828, page 713, where the cases are cited. This statute does not prescribe a limitation on the right acquired by the twenty year prescription period of adverse possession. Jones v. Rutledge, 202 Ala. 213 80 So. 35; Smith v. Smith, 213 Ala. 670, 106 So 194; Earnest v. Fite, 211 Ala. 363, 100 So. 637; Stearnes v. Woodall, 218 Ala. 128, 117 So. 643.

And if a conveyance of his holding is sufficient to include the strip thus acquired, it will pass under it. But what is the result if the description in the conveyance is not sufficient to include this acquired strip? That is our question here.

It is of course true that no act or even agreement of the parties can take the land out of section 11 and put it in section 14. And while the boundary line between adjacent land owners may be fixed and changed by agreement or by adverse possession, they cannot relocate a section line as surveyed by the Government surveyors. So that if the land was in section 11 as thus surveyed, it has so remained and still is thus situated. And the parties both treat it so. It follows that a conveyance of land described as in section 14 does not on its face include land in section 11. But can it be treated as an appurtenant to the land in section 14, so as to pass with a conveyance of it?

This question has been treated by the authorities which declare that as a rule a grantee can acquire by his deed only the land described in it, and does not acquire by way of appurtenant land outside such description. But that when a boundary line is mobile, such as a water course-though it may shift-a deed conveys the land up to such shifting line as it does up to a fixed line. Jones v. Johnston, 18 How. 150, 15 L.Ed. 320.

This principle seems to include accretions arising from imperceptible changes in water courses, though the land is described by the lot number when the water course is a boundary line of that lot by such number, and includes that which was thus added without other description. Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872; 16 Amer.Jur. 605, section 295.

But it has been held that this principle would not justify the inclusion of an area acquired by accretion when the deed described the property conveyed by well defined markers not embracing the disputed area, since such a description discloses on its face an intention to convey a parcel which does not include that area. Houston Bros. v. Grant, 112 Miss. 465, 73 So. 284, Ann.Cas.1918E, 243.

And so when the land is described by Government numbers, the deed does not purport to convey an area outside of such described land. For in Humphreys v. McKissock, 140 U.S. 304, 11 S.Ct. 779, 781, 35 L.Ed. 473, it was said, quoting from Woodhull v. Rosenthal, 61 N.Y. 382, 390, that "land can never be appurtenant to other land, or pass with it as belonging to it. All that can be reasonably claimed is that the word 'appurtenance' will carry with it easements and servitudes used and enjoyed with the lands for whose benefit they were created. Even an easement will not pass unless it is necessary to the enjoyment of the thing granted."

This does not conflict with the principle that when shifting boundaries gradually change, the tract embraces land thereby added.

The result is that the court correctly ruled that plaintiff's...