Bruno v. Carter
| Decision Date | 01 August 1986 |
| Parties | Vincent J. BRUNO and Charles J. Bruno v. John Byron CARTER. 85-252. |
| Court | Alabama Supreme Court |
P. Richard Hartley, of Hartley & Hickman, Greenville, for appellants.
J. Milton Coxwell, Jr., of Coxwell and Coxwell, Monroeville, for appellee.
This case involves a boundary line dispute, and, as is true of so many we receive for review, it raises the question whether a fence line, not located on the line referred to by the deeds, should be recognized as the true boundary because of the adverse possession by one of the parties.
Plaintiffs in the court below, Vincent and Charles Bruno, pursuant to the provisions of Code 1975, § 35-3-1, et seq., filed a complaint in which they sought to have a determination made of the true boundary line between their land and that of the defendant, John Carter, who filed an answer in which he denied that a dispute existed as to the boundary line and in which he alleged that an existing fence, although not located on the common boundary line described in each party's respective deed, had been adopted and recognized by the parties as the line for more than forty years.
After hearing ore tenus testimony from numerous witnesses, the trial court concluded that Carter had adversely possessed the disputed area lying between the fence and the government survey line described in the deeds as the boundary line.
Plaintiffs appealed, claiming that the trial court's findings were against the great weight of the evidence. We affirm.
Because plaintiffs claim that the decree of the trial court is against the great weight of the evidence, we set out the tendencies of the evidence from the transcript of the trial.
In 1921, Charles S. Bruno, father of the plaintiffs, acquired "paper title" to, and went into possession of, certain lands, including, viz.:
"The Northwest Quarter of the Northeast Quarter of Section EIGHT, Township SIX North, Range EIGHT east, Monroe County, Alabama."
In 1966, the plaintiffs, Vincent and Charles Bruno, obtained "paper title" to, and went into possession of, the above described lands.
From 1930 until the present, Vincent Bruno managed the subject lands, first for his father, and then for himself and his brother. The land in question is primarily timber land, with some open pasture land interspersed therein. There was evidence that Vincent Bruno had cultivated timber on the tract, cut timber from it in 1940-41, 1958, and 1961, but whether timber was cut to the fence line or to a marked survey line was in dispute. He testified that the government survey line marking the south line of the forty-acre tract in question was marked with white paint in 1940, and that the line was shown to him by one Howard Faulk, a tenant on the Bruno property, in 1940. Bruno further testified that he saw no fence near the south line at that time.
In 1958, Bruno employed Rob Andress, a licensed surveyor, to locate the government survey line and to blaze, hack, and paint trees to locate the line. There was evidence that Andress reestablished the government survey line in 1958 by surveying from a proven corner and using government field notes. Andress testified that he noticed a barbed-wire fence meandering north of a creek which lies north of the south line of the forty-acre tract established by his survey at that time.
In 1966, Bruno entered into a timber management contract with McMillan Bloedel, Inc., covering the Bruno lands and including the area in dispute in the case at bar. Floyd Dailey testified that as a line crew foreman for McMillan Bloedel, Inc., he personally participated in "chopping, measuring, blazing, hacking and painting" the Bruno line in 1968 and 1969 and that the line painted yellow by his crew was the same line previously painted reddish-orange by Andress in 1958. Dailey also testified that he noticed white paint in several places on the Bruno line. Finally, Dailey testified that he noticed a fence north of the painted line, that the trees and underbrush were very thick, and that the fence was in fair shape.
Edd Kennedy testified that as area forester for McMillan Bloedel, Inc., he was familiar with the Bruno lands and that the south line of the subject Bruno tract had been marked and painted by McMillan Bloedel, Inc. in 1969, 1976, and 1983. He further testified that he had observed the fence lying north of the painted line; that in 1983, Carter advised him that he considered the fence to be the line between his land and Bruno's, and that Kennedy testified that no timber was cut across the fence line because of Carter's claim. Finally, Kennedy testified that prior to 1983, neither Carter nor anyone else had objected to the painted line or claimed the fence to be the correct boundary line between Bruno and Carter.
There was some evidence that the fence was old and ran east and west generally, but zigzagged.
Defendant Carter testified that his land was owned by someone named Ryland before his father took "paper title" to it by deed from Ryland in 1947, the deed describing his land as follows:
The Southwest Quarter of the Northeast Quarter of Section EIGHT, Township SIX North, Range EIGHT East, Monroe County, Alabama."
He further testified that a fence was located on the north side of his land and that he had been familiar with the subject area since the early 1940's. Carter testified that he and his father repaired the fence periodically, that they and Ryland before them kept cows on the lands, that he hunted and fished on the land, and that Faulk kept cows on the Bruno lands north of his lands.
There was no testimony as to who built the fence, when it was built, and for what purpose, or that the coterminous owners had agreed that the fence represented the boundary line between them. Nevertheless, Carter testified that he and his father had cut timber and cedar posts in the area between the painted line and the fence. He also testified that the first time he noticed the painted line was in 1983, but on cross-examination,...
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