Barbaree v. Flowers

• Decision Date: 09 May 1940
• Docket Number: 4 Div. 112.
• Citation: 196 So. 111,239 Ala. 510
• Parties: BARBAREE ET AL. v. FLOWERS.
• Court: Alabama Supreme Court

196 So. 111

239 Ala. 510

BARBAREE ET AL. v. FLOWERS.

4 Div. 112.

Supreme Court of Alabama

May 9, 1940

Appeal from Circuit Court, Bullock County; J. S. Williams, Judge.

Suit in equity by Mrs. F. A. Flowers against P.J. Barbaree and Mrs M. E. Forsyth, to settle a disputed boundary line. From a decree for complainant, respondents appeal.

Reversed and rendered.

Andrews & Andrews and Moseley & McIlwain, all of Union Springs, for appellants.

Cope &amp Cope and T. S. Frazer, all of Union Springs, and Steiner Crum & Weil, of Montgomery, for appellee.

GARDNER Chief Justice.

Complainant (appellee here) owning a certain lot situated on the north side of Conecuh Street in Union Springs, Alabama, filed this bill against respondents, P.J. Barbaree and Mrs. M. E Forsyth, whose lots adjoin hers on the east, to settle the boundary line between them, which is in dispute. Sections 6439-6441, Code of 1923. A fence, extending from the southwest corner of the Barbaree lot to the northwest corner of the Forsyth lot, is the present dividing line of the respective parties: complainant insisting that on the north end the fence embraces about 18 feet of her lot, narrowing down to 6 feet at the south end.

The defense rests upon the doctrine of adverse possession and prescription: a defense here available. Branyon v. Kirk, 238 Ala. 321, 191 So. 345. To establish this defense the burden rested upon respondents. Hancock v. Warren, 235 Ala. 180, 177 So. 907. As said in McDaniel v. Sloss-Sheffield Steel & Iron Co., 152 Ala. 414, 44 So. 705, 706, 126 Am. St.Rep. 48: "In order to establish adverse possession, as against the holder of the legal title, 'the law is stringent in requiring clear proof of the requisite facts. There must be, first, an actual occupancy, clear, definite, positive and notorious; second, it must be continued, adverse, and exclusive during the whole period described by the statute; third, it must be with an intention to claim title to the land occupied.' " All of the authorities, of course, emphasize the requirement that the possession must be held under a claim of right. McLester Building Co. v. Upchurch, 180 Ala. 23, 60 So. 173; Smith v. Cook, 220 Ala. 338, 124 So. 898; Dothard v. Denson, 72 Ala. 541; Hornsby v. Tucker, 180 Ala. 418, 61 So. 928.

It is not insisted that section 6069, Code of 1923, or its progenitors have application here. Shepherd v. Scott's Chapel, 216 Ala. 193, 112 So. 905; Branyon v. Kirk, 238 Ala. 321, 191 So. 345; Hancock v. Warren, 235 Ala. 180, 177 So. 907.

As to boundary line disputes the doctrine of adverse possession has been often discussed in our cases, among the more recent being Brantley v. Helton, 224 Ala. 93, 139 So. 283; Branyon v. Kirk, 238 Ala. 321, 191 So. 345; Shepherd v. Scott's Chapel, 216 Ala. 193, 112 So. 905.

Complainant lays much stress upon the matter of intention on the part of respondents to claim this strip as their own. In the Kirk case, supra, after observing that the matter of adverse possession is one of intention, the opinion continues as follows [238 Ala. 321, 191 So. 348]: "If it was so held because he considered it his own, and claimed it as his own, it is hostile though he does not suppose he is claiming more than he owns; and that such claim is by a mistake of fact. It is not necessary for one to know that he is claiming the property of another when he is in the actual possession of it to make such possession adverse to the true owner. If he is in the actual possession with the intention to hold it and claim it as his own, it is adverse."

Like observations were made in the Brantley case, supra. There it was pointed out that 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, for possession is hostile when one holds the property as his own, claims it as his own, whether by mistake or wilfully. It was there further observed [224 Ala. 93, 139 So. 285]:

"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 in hostility to him.

"But in law a hostile possession is not limited to any such case. It is hostile when held as his own, claimed as his own, whether by mistake or willfully.

"There are certain cases of entry under the owner, or in recognition of joint ownership, and the like, when notice of a hostile possession must be brought home to the owner; but in boundary line cases, the inclosure of valuable lands, such as city lots, and appropriation of same to a beneficial enjoyment, carries notice of an adverse claim to the adjoining owner, or puts him on inquiry.

"In this case, the possession goes back a half century from the time of the trial.

"The rule of repose, so essential to the security of titles at law and in equity, is intended to put an end to demands permitted to slumber until, by the long lapse of time, and the death of parties whose transactions are brought into question, the whole truth cannot be known. Whether long inaction be from want of diligence in ascertaining or in asserting rights, such rule has a just field of operation in boundary line cases.

"In a case like this, where beneficial enjoyment of inclosed lands had continued for more than thirty years during the lifetime of Mr. Wiley, a strong presumption must be indulged in favor of the line marked by the division fence.

"An agreed line, by express agreement of adjoining owners, or by act of one with the acquiescence of the other, will be presumed, and can be overturned only by strong evidence to the contrary."

In the instant case there is no pretense of any agreed boundary line. Nor is there anything in this record that could be said to question the good faith and bona fide belief on the part of these respondents that the fence was the true line. There is nothing, therefore, in this record to indicate the possession of this strip of land originated in any admitted mistake. Shepherd's case, supra.

Giving application to these rules established for the court's guidance in cases of this character, we feel impelled to differ from the ruling of the chancellor in the instant case.

Upon the question as to who originally constructed this dividing line fence the record is silent. Perhaps, from the passage of so great a length of time this fact could not well be established. Mrs. Griffin is the daughter of Mrs. Emma McGowan, who formerly owned the property now owned by these respondents,--the mother having been such owner sixty or seventy years. Mrs. Griffin lived with her mother on the lot now owned by respondent Barbaree, and when so residing they used the lot of Mrs. Forsyth as a garden. Mrs. Griffin and her mother sold to Barbaree his lot in 1911 or 1912, and to Mrs. F. S. Thornton the lot just north of Barbaree's lot in 1896, the latter lot being now owned by respondent Mrs. Forsyth. When these lots were sold Mrs. Griffin says there was a fence considered the dividing line between these lots and the R. D. Smith lot on the west, and that the fence has been there as long as she can...