Bell v. Bell

• Decision Date: 12 July 1991
• Citation: 590 So.2d 148
• Parties: Cecil BELL v. William BELL. 89-1816.
• Court: Alabama Supreme Court

Page 148

590 So.2d 148

Cecil BELL v. William BELL.

89-1816.

Supreme Court of Alabama.

July 12, 1991.

Rehearing Denied Nov. 8, 1991.

Cecil Bell, pro se.

George A. Monk of Merrill, Porch, Dillon & Fite, Anniston, for appellee.

HORNSBY, Chief Justice.

Cecil Bell sued William Bell because of a dispute over an east-west boundary line. He also sued Wylie Bell and William T. McElroy because of a dispute over a north-south boundary line. The trial court entered a judgment in favor of defendant William Bell in regard to the east-west boundary line dispute. ¹ Cecil Bell filed a motion for new trial, which the trial court denied, and Cecil Bell appeals. We affirm.

The trial court entered the following order:

"This matter having come before the Court upon the Complaint of the Plaintiff against [William Bell] and others [Wylie Bell and William T. McElroy] owning property contiguous to that of the Plaintiff alleging, inter alia, that various old fence lines demark the boundary lines of the Plaintiff's property with that belonging to the Defendants. With respect to this particular Defendant [William Bell], the Plaintiff has further alleged a trespass on the Plaintiff's property with attendant injuries to the Plaintiff. Except for the trespass aspect of this case, therefore, this is a boundary line dispute.

"The Plaintiff requested that a temporary restraining order be issued to prevent the Defendant, William Bell, from damaging, cutting or otherwise tearing down the fence which had been erected by the Defendant which said fence had the effect of containing the Plaintiff's cattle in his pasture. The Court duly issued the temporary restraining order and thereafter extended the same upon the posting of good and proper bond by the Plaintiff.

"On or about the 12th day of January, 1989, the Defendant [William Bell] moved this Court to sever the claim made by the plaintiff against him from all other claims made against the various other Defendants. The defendant, William Bell, further answered the Plaintiff's Complaint admitting Paragraphs 1-3 thereof, but denying Paragraphs 4 and 5. The Defendant, William Bell, further counterclaimed against the Plaintiff alleging a trespass against the Plaintiff and requesting compensatory and punitive damages, together with an injunction against the Plaintiff from interfering with the Defendant Bell's enjoyment of his property.

With the case having [been] in the above posture, this matter came before the Court for a hearing on the 9th day of February, 1989. Both parties were present at said hearing with counsel and presented testimony, ore tenus. Thereafter, on to wit, the 1st day of March, 1989, the Plaintiff amended his complaint alleging the need by the Plaintiff of access to a public road known as State Line Road lying east of the Plaintiff's property which said access would be across the Defendant's land. The Court has taken this amendment as a request for the Court to declare an easement or way of necessity across the Defendant's property. This new issue having been raised by the Plaintiff's March 1st pleading resulted in additional testimony having been taken on August 24, 1989, at which time both parties again were present with their respective attorneys of record and testimony presented with respect to the issues raised in the amended complaint. At said hearing, the Court advised the parties that the Court wished to view the parties' property and, in particular, the area surrounding the dividing line between the parties' property. The on-site visit was conducted on August 28, 1989, in the presence of the parties and their attorneys of record. Thereafter, the Court has taken this case under consideration and after consideration of the evidence presented ore tenus, together with the Court's on-site view of the subject property, the Court does hereby enter the following findings of fact:

"FINDINGS OF FACT

"The parties to this action are brothers, each owning property which, at one time, belonged to their parents, both of whom are now deceased. The testimony revealed that the parties' father died leaving all of the family property to the parties' mother who, in turn, prior to her death, partitioned the property deeding portions of the family farm to each of her children, including the two parties to this action. It is undisputed that the mother undertook this partition of the family property in 1982, resulting in deeds to each of these two parties to a substantial amount of property sharing a common boundary line by deed description. It is undisputed that the deed given to the Plaintiff is to property lying wholly within the State of Alabama. The deed through which the Defendant, William Bell, claims title to his property, without question, describes property lying wholly within the State of Georgia. The Court notes that neither party had any claim or color of title to the property which they currently own for a period more than ten years prior to the filing of the Complaint in this cause.

"Each party conceded that their respective deed described the property in one state or the other. That is, neither party's deed attempted to describe property on each side of the Alabama-Georgia state line. That being so, it became apparent to the Court that the real dispute revolved around the location of the Alabama-Georgia line. By way of alternative pleading, however, it appears to the Court that the Plaintiff further has alleged that a pasture fence erected by the parties' father several decades ago was intended to demark a boundary line between the easternmost property claimed by the [Plaintiff] and the westernmost property claimed by the [Defendant]. Testimony was received by the Court both with respect to the location of the Alabama-Georgia line as well as to the nature, existence and location of the pasture fence to which the Plaintiff claims title.

"Upon the testimony presented, the Court is of the opinion that the Plaintiff's claim of title [up] to the old pasture fence is without merit. Upon the testimony presented, as well as the Court's visual inspection of the old pasture fence line, it appears to the Court that said fence meandered from tree to tree and was erected with the obvious intent of catching cattle to direct them to the barn as they traveled from the south pasture. In short, the fence claimed by the [Plaintiff] in his alternative pleading as the boundary line between the property appears to have been a cross fence only, located within the boundaries of the parties' parents larger tract of property from which the Plaintiff's individual parcels were ultimately carved. The Court further notes (though it is not necessary to this Court's decision) that the doctrine of adverse possession seemingly would not apply to this situation since both parties acquired title from a common grantor, namely their mother, and that the common grantor owned both sides of the fence line in question thereby rendering it impossible for the doctrine of adverse possession to apply under the facts of this case.

"As to the location of the Alabama-Georgia state line, each party presented lay and expert testimony (by land surveyors and civil engineers) on this one issue. The Plaintiff's expert presented testimony to the effect that he had surveyed what he believed to be the Alabama-Georgia line at the request of the Defendant prior to the Defendant erecting a fence approximately one foot to the east of the survey line. The Court also notes that the Defendant's expert commenced his survey from a known point on the federal land survey system and utilized other monuments or markers testimony of which revealed [that they] were recognized in the community as known boundary markers. Though the Defendant's engineer was candid in his testimony that no one knew the exact location of the Alabama-Georgia line within the area of this dispute (or within several miles either side thereof), the Court is of the opinion that the Defendant's expert utilized reasonable procedures to establish the Alabama-Georgia state line and did so to the satisfaction of this Court as exhibited by exhibits of his survey submitted and received in evidence by the Court. Upon consideration of the evidence therefore, the Court hereby finds that the Defendant's expert has satisfied the Court as to the location of the Alabama-Georgia line with respect to the property of the parties to this litigation, and upon further evidence received by the Court, it appears that the Defendant erected a new fence line approximate[ly] one foot east of the survey line established by the Defendant's surveyor and that, therefore, said fence exists wholly within the property of the Defendant.

"As to the Plaintiff's request that this Court declare an easement or 'way of necessity', the Court recognizes its general authority and power to grant such an easement or way under certain tightly prescribed conditions. See Helms v. Tullis, 398 So.2d 253 (Ala.1981); Oyler v. Gilliland, 382 So.2d 517 (Ala.1980); and King v. Westbrook, 358 So.2d 727 (Ala.1978). From the testimony presented, as well as the Court's personal observation derived from his on-site visit, it appears to the Court that the property of the Plaintiff is adequate to give him reasonable access to other public roads or rights-of-way and that the denial of [the] easement or way requested in this action, though perhaps more convenient, does not leave the Plaintiff without other reasonable and adequate access to public roads or rights-of-way. Further, having declared the fence line in existence as being wholly within the Defendant's property within the State of Georgia, the Court questions (though it does not find) whether it would have the authority in the first instance to declare an easement or way by necessity over and across property which it has declared to be within a sister state, outside the jurisdiction of this Court. The Court makes its observation though [it] does not consider this...