Bushnell v. Martin

• Decision Date: 29 September 1989
• Citation: 553 So.2d 92
• Parties: Edna BUSHNELL v. J.R. MARTIN and Sylvia G. Martin. 88-762.
• Court: Alabama Supreme Court

Page 92

553 So.2d 92

Edna BUSHNELL v. J.R. MARTIN and Sylvia G. Martin.

88-762.

Supreme Court of Alabama.

Sept. 29, 1989.

Rehearing Denied Nov. 3, 1989.

James H. Miller III of Balch & Bingham, Birmingham, for appellant.

Erskine R. Funderburg of Church, Trussell & Robinson, Pell City, for appellees.

SHORES, Justice.

This is a boundary line dispute between coterminous landowners involving lake property located in a platted residential subdivision, Riviere Estates, in St. Clair County.

James and Sylvia Martin, owners of lot 23 in Riviere Estates, initiated this suit on August 21, 1987, against Ms. Bushnell, who owns lot 24. The Martins filed suit after Ms. Bushnell notified them that she wanted them to remove a portion of their fence, which she claimed encroached on her property. In their complaint, the Martins set out the legal descriptions of lots 23 and 24, alleged that their predecessors in title had erected the fence more than seven years earlier without challenge, and further asserted:

"[t]hat the property in dispute was built up by the Plaintiffs' predecessor in title with the permission of Alabama Power Company and dirt was placed in that area to prevent the flooding of the Plaintiffs' residence; that the Plaintiffs and their predecessors in title have cut the grass and maintained the ... said property for over ten (10) years and the property line between said property have [sic] been recognized by the plaintiffs and the defendant as the boundary line between said parties."

The Martins requested the court to determine the true boundary line between the lots.

Ms. Bushnell filed an answer denying the substantive allegations of the complaint. She also filed a counterclaim alleging trespass. The Martins twice amended the complaint, each time claiming a different "true boundary line" by making reference to a survey completed at their request by Billy R. Martin. Ms. Bushnell filed an amended counterclaim alleging trespass and various other unlawful and malicious acts on the part of the Martins, seeking compensatory and punitive damages, and demanding a jury trial on all counts. Thereafter, the Martins moved to sever the counterclaim on grounds that the allegations were frivolous and were designed to harass and intimidate them. Ms. Bushnell filed an objection to the motion to sever, and the motion was denied.

After an ore tenus trial, the court viewed the premises and entered an order establishing the boundary line at a place consistent with the line the Martins had pleaded in their first amended complaint. The court dismissed Ms. Bushnell's counterclaim with prejudice. Ms. Bushnell filed various post-judgment motions and then appealed. We reverse and remand for further proceedings.

In 1972, Ms. Bushnell purchased lot 24, and Worth and Sara Little purchased lot 23. The legal description of lot 24, as set out in the plaintiffs' complaint, is as follows:

"Lot # 24, Section A according to map or plat of Riviere Estates, Inc. Subdivision recorded in Plat Book 1962, Page 75, in the office of the Judge of Probate of St. Clair County at Pell City, Alabama.

"LESS AND EXCEPT a parcel off the southwest corner of said lot described as follows: Commence at the Northwest corner of Lot # 24 of the Riviere Estates Subdivision, St. Clair County, Alabama; thence in a southwesterly direction along the northwest line of said lot for a distance of 417.24 feet to the point of beginning of property herein described; thence deflect an angle of 81? 13' to the left for a distance of 48.3 feet to a point on the 465.0 contour, the pool level of the Logan Martin Lake; thence in a southwesterly direction along the 465.0 contour to the northwest line of said Lot # 24; thence in a northeasterly direction along the northwest line of Lot # 24 for a distance of 160.56 feet to the point of beginning, being in and a part of Lot # 24 of the Riviere Estates Subdivision in Section 31, Township 17 South, Range 4 East, St. Clair County, Alabama."

The legal description of lot 23 includes the parcel of land that is excepted from lot 24. The property in dispute lies northeast of the area excepted from lot 24, and consists of a grassy area extending up the hill from the lake. For a better understanding of the case, we have attached a copy of the survey the Martins commissioned and referred to at trial. The survey was admitted into evidence.

The Littles constructed a dike on lot 23 in 1972, and they occupied the land until 1976. The court received testimony that from 1972 through 1976, the Littles and the Bushnells both maintained the disputed area surrounding the boundary line. Sara Little testified by deposition, and her son, Barry Starr, testified before the court. Each witness examined photographs of the lots and gave vague descriptions of their understandings of the location of the boundary line in the area now in dispute, while acknowledging that no one had pointed out the precise boundary line to them. Their testimony differed as to the proper location of the line in the area in dispute. Ms. Little and her son stated that they cut the grass in the area, but that they did nothing to mark the boundary.

The deposition of Fair Sutherlin, the plaintiffs' other predecessor in title, was admitted into evidence. George and Fair Sutherlin acquired lot 23 in 1976 and sold it to the Martins in 1985. Ms. Sutherlin testified that, to her knowledge, lot 23 was not surveyed during the time they owned it. She stated that the seawalls at the lake's edge and the swell of the dike were the only noticeable boundary markers between their lot and Ms. Bushnell's lot. She was unable to describe the boundary line with precision, but stated, "you had to determine where that swell was," and "when you came off the dike, I knew I was on Dr. Bushnell's land, even though we maintained this land." Ms. Sutherlin marked what she believed to be the boundary line on a copy of Ms. Bushnell's survey. The boundary she marked differs greatly from the line claimed by the Martins at trial.

In 1978, the Sutherlins began building a fence near the area now in dispute in order to keep their dogs in the yard. Ms. Sutherlin testified that Ms. Bushnell informed them that the fence was on her property, so they moved it back several feet. Ms. Sutherlin stated that she and her husband sowed and cut grass on the property now in dispute, and on property they knew belonged to Ms. Bushnell. She also said she did not claim anyone's property, but just cut the grass and did not pay attention to whose it was.

James Martin testified that he hired Billy Martin to survey lot 23 in 1987. The survey Martin completed was admitted into evidence, and it shows that the disputed property lies entirely within the boundaries of lot 24, which is owned by Ms. Bushnell. Mr. Martin stated, however, that after the survey was completed, Mr. Bushnell pointed out, in a general way, a different property line in the grassy area now in dispute, and indicated that the Sutherlins and Littles had possessed up to that line. Mr. Martin acknowledged that no fence, trees, or shrubbery clearly defined the line between the parcels. He stated that he sowed grass seed and mowed the grass in the disputed area.

On rebuttal, Mr. Martin was asked about the detailed drawing located in the upper left corner of the survey made by Billy Martin, a copy of which is attached to this opinion. He testified that the triangle "would have been a compromise rather than going to court." He stated, however, that he had always possessed and claimed up to the line Mr. Bushnell described to him, which encompasses a larger area and which is marked on the attached survey as the disputed property. Although the upper left corner of the survey contains a note stating that Mr. Martin was going to try to purchase the compromise triangle drawn in the corner, Mr. Martin denied offering to purchase any of the property, which, in this lawsuit, he contended belonged to him.

Derrol Luker, a registered engineer and surveyor, testified that Ms. Bushnell requested that he survey her lot, but that he refused, because, in his opinion, he could not complete an accurate survey unless he found all four existing corners and because Ms. Bushnell threatened to sue him if he did not survey the lot. He admitted, on cross-examination, that before he rejected the job, he did not examine the lot or attempt to locate the corner pins.

Ms. Bushnell testified that she has had her lot surveyed three times since 1972, and has continuously possessed and maintained the property up to the boundary line shown on the surveys. Specifically, she stated that, in the area now in dispute, she has mowed the grass, planted trees and shrubs, cut trees, and placed logs to mark the boundary line. She also testified that she has paid taxes on the lot.

Robbin Phillips surveyed lot 24 in 1987 at Ms. Bushnell's request, and a copy of his survey was admitted into evidence. He testified that he found several corner irons in positions that closely matched where corner irons would have been placed pursuant to the legal description of Ms. Bushnell's lot, so he used the established corners to survey the property. Mr. Phillips stated that one of the corners of lot 24 was inside the fence built by the previous...