Bearden v. Ellison

• Court: Supreme Court of Alabama
• Writing for the Court: HOUSTON; HORNSBY
• Citation: 560 So.2d 1042
• Parties: Clifford BEARDEN and Mary Grace Bearden v. Clarence ELLISON and Lillian Ellison. 88-1291.
• Decision Date: 16 March 1990

Page 1042

560 So.2d 1042 Clifford BEARDEN and Mary Grace Bearden
v.
Clarence ELLISON and Lillian Ellison. 88-1291. Supreme Court of Alabama. March 16, 1990.

J. Michael Joiner of Joiner and Kramer, Alabaster, for appellants.

J. Frank Head of Wallace, Ellis, Head & Fowler, Columbiana, for appellees.

HOUSTON, Justice.

This appeal involves a boundary line dispute between two coterminous landowners. We affirm.

After a thorough review of the record and the briefs in this case, we find that a presentation of the facts is unnecessary to resolve the issue presented and that a recitation of the facts would not aid the Bench and the Bar in any way.

Page 1043

The issue before us is whether there was sufficient evidence from which the trial court could find that Clarence and Lillian Ellison (referred to in the trial court's order as "Plaintiffs") adversely possessed the disputed strip of property adjacent to the property owned by Clifford and Mary Grace Bearden (referred to in the trial court's order as "Defendants").

The trial court's order reads as follows:

"This cause has been submitted upon Complaint of the Plaintiffs, Clarence Ellison and Lillian Ellison, and Answer filed by the Defendants, Clifford Bearden and Mary Grace Bearden, and upon evidence submitted by the parties and ore tenus hearing by the court. This is a boundary line dispute between two adjoining, coterminous landowners, and the Court is called upon to decide the true and correct boundary line between the parties, and the ownership of certain disputed property on the east side of an old fence which runs between the parties.

"The Court finds from the evidence presented that a fence has separated the two parcels of property for more than forty years, and in fact, was built by the Defendants. In addition, the Court finds that the southernmost portion of said fence was destroyed by the Defendants, or their son, shortly before the filing of the complaint. The Court finds that the Plaintiffs have raised gardens, cut timber, grazed cattle, and otherwise used the property on the East side of the old fence as their own for more than thirty-eight years preceding the filing of the complaint. The Court further finds that the use of the property by the Plaintiffs up to the fence has been in an actual, hostile, open, notorious, exclusive, and continuous manner, and has been without the permission of the Defendants. The Court further finds that the parties have acknowledged and recognized the old fence as the boundary line between the two parcels of property at least since the late 1940's, and that the Plaintiffs have adversely possessed the property on the east side of the old fence up to said fence.

"It is therefore, ORDERED, ADJUDGED, and DECREED that the dividing line between the property of the Plaintiffs and the property line of the Defendants in the Southwest Quarter of the Northwest Quarter of Section 19, Township 20 South, Range 2 West and the Northwest Quarter of the Southwest Quarter of Section 19, Township 20 South, Range 2 West, Shelby County, Alabama is the old fence constructed by the Defendants which separates the parcels of property of the Plaintiffs and Defendants. Further, the Plaintiffs, Clarence Ellison and Lillian Ellison, have acquired title to all disputed property on the East side of said fence line by adverse possession.

"The Plaintiffs or their attorneys, shall within forty five (45) days from today's date, mark the said line by placing on the North end, and on the South end (adjacent to Shelby County Highway # 52 right-of-way), permanent markers, and shall select a surveyor to survey the said fence line. The Plaintiffs or their attorneys shall then report to the Court in writing concerning their actions, and present the said survey and surveyor's report, and the Defendants will have thirty (30) days from that date to object to the placement of markers and boundary line survey. Upon report, presentation of survey, and expiration of time for objection, the Court will enter a final order establishing the survey description of the boundary line between the parties. The cost of said survey shall be taxed as a part of the court costs in this action, and court costs shall be divided equally between the Plaintiffs and Defendants."

Where a trial court hears ore tenus testimony, as in this case, its...