Cambron v. Kirkland, 8 Div. 429

• Citation: 253 So.2d 180,287 Ala. 531
• Decision Date: 23 September 1971
• Docket Number: 8 Div. 429
• Parties: Minnie Louise K. CAMBRON et al. v. Charles KIRKLAND, Jr., et al.
• Court: Alabama Supreme Court

Page 180

253 So.2d 180

287 Ala. 531

Minnie Louise K. CAMBRON et al. v. Charles KIRKLAND, Jr., et al.

8 Div. 429.

Supreme Court of Alabama.

Sept. 23, 1971.

Lusk & Lusk, Guntersville, for appellants.

J. S. Stone, Guntersville, for appellees.

BLOODWORTH, Justice.

This is a boundary line dispute between coterminous landowners. From an adverse decree fixing the boundary line, complainants appeal.

On August 21, 1969, complainants filed a bill of complaint against Charles Kirkland, Jr., and his wife, Geraldine Kirkland, the East half of the NE 1/4 of the NW 1/4 of Section 29, Township 6, Range 3 East, in Marshall County, Alabama; that respondents own the ten acres adjoining on the West, being the East half of the West half of the same NE 1/4; that the true boundary line between these two contiguous tracts is the line which divides the East half from the West half of the same NE 1/4; that complainants' survey locates this line; that respondents Kirkland claim that their boundary line is located on complainants' property some 40 feet East of the true boundary line; that the respondents have taken possession of this disputed strip and have erected a shed on it; and, that the court should fix the true boundary line as complainants allege it to be and require respondents to remove their shed.

The testimony of the witnesses was taken by written depositions before the Register. On July 20, 1970, the cause was submitted to the trial court. On February 17, 1971, a final decree was rendered by the court fixing the boundary line substantially as contended for by the respondents. Though the trial court's decree stated that the complainants' survey correctly fixed the line between the East half and the West half of the said NE 1/4, nevertheless, the court found that respondents had established title by adverse possession to the South half of the disputed strip. The following surveyor's map, which was introduced into evidence, may assist in an understanding of this case.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Specifically, the trial court fixed the true boundary line as follows:

'Commence at a point on the North line which is equil-distance (sic) from the Northeast and Northwest corners of the Northeast Fourth of the Northwest Fourth of Section 29, Township 6 South, Range 3 East, in Marshall County, Alabama; thence South 665 feet and parallel with the East line and West line of said land; thence East 54 feet to the turnrow or ditch; thence South along said turnrow or ditch 665 feet to the South boundary of said land, and parallel with the East and West boundaries of said land.'

While the trial judge, in fixing the boundary line, based his decree on his finding that respondents had acquired a portion of the disputed strip by adverse possession, he also found that the drainage ditch or turnrow boundary line had been regarded as the line between the parties and their predecessors in title for a period exceeding the prescriptive period of twenty years.

In view of the fact that this cause was submitted on depositions, the trial court's decree comes to us unclothed with any presumption of correctness as to his conclusions on the facts. Lay v. Phillips, 276 Ala. 273, 161 So.2d 477 (1964). Therefore, 'we must sit in judgment on the evidence.' Henslee v. Merritt, 263 Ala. 266, 82 So.2d 212 (1955); Machen v. Wilder, 283 Ala. 205, 215 So.2d 282 (1968).

Being mindful of this duty, we have carefully read and reviewed the evidence, particularly that part which relates to the trial court's finding that respondents had acquired title to the disputed strip by adverse possession.

It appears the entire NE 1/4 of the NW 1/4 of Section 29, a forty acre tract, was once owned by one Mile Kirkland, father of complainant Minnie Louise K. Cambron, and grandfather of respondent Charles Kirkland, Jr. In 1939, Mile's son Charlie Kirkland purchased the twenty acres comprising the West half of the tract from his father. According to the testimony the forty acre tract was surveyed twice, once in 1940, and later in 1941, by a surveyor from Huntsville, Alabama. The survey in 1941 was paid for by Charlie Kirkland and, according to his testimony, was for the purpose of determining the line between him and his father. As a result of that survey he testified that a boundary line was established between the two tracts which was marked by a turnrow or ditch which he and Woody Cambron, the deceased husband of the complainant Minnie Louise K. Cambron, plowed out. Complainant Minnie Louise K. Cambron, the daughter of Mile Kirkland, together with her husband Woody Cambron and their family, lived on the East twenty acre tract with Mile Kirkland. In 1947, Mile Kirkland deeded this twenty acre tract (the East half of the forty) to the complainant Minnie Louise K. Cambron and her husband on the condition that he (Mile Kirkland) be allowed to live with them until his death. Both Mile Kirkland and Woody Cambron are now deceased. On April 22, 1959, Charlie Kirkland sold that half of his twenty acres which is contiguous to the complainants' property to his son, Charles Kirkland Jr., and wife, the respondents. At that time the property was planted in corn up to the turnrow. That same November Charles began building a house...