Christian v. Reed, 6 Div. 848

• Decision Date: 21 February 1957
• Docket Number: 6 Div. 848
• Citation: Christian v. Reed, 265 Ala. 533, 92 So.2d 881 (Ala. 1957)
• Parties: G. E. CHRISTIAN v. Flaudie M. REED.
• Court: Alabama Supreme Court

Page 881

92 So.2d 881

265 Ala. 533

G. E. CHRISTIAN v. Flaudie M. REED.

6 Div. 848.

Supreme Court of Alabama.

Feb. 21, 1957.

R. G. Redden, Vernon, and Bill Fite, Hamilton, for appellant.

Young & Young, Vernon, for appellee.

COLEMAN, Justice.

This is an appeal from a decree of the Circuit Court of Lamar County, In Equity, establishing a boundary line between lands of appellant on the north and lands of appellee on the south.

The appellant, complainant below, filed his bill alleging that appellant and appellee are coterminous landowners; describing appellant's land; also describing appellee's land; and alleging the true boundary line to be as follows:

'The line established and located by the survey of U. S. Estes in the month of October, 1953; that is, beginning at a Wood Stake 30 feet north of the Southwest corner of Lot No. 119 on the East side of Walnut Street in the Nesmith Addition to Town of Vernon, Alabama; thence on a bearing of north 87 degrees 30' East a distance of 580 feet to a Wood stake which is 92 feet south of Complainant's Northeast corner.'

Appellee, respondent below, filed her answer admitting coterminous ownership; admitting correctness of descriptions in the bill; denying that the true line is as claimed by appellant; and alleging the true line to be as follows:

'Beginning at a point on the east side of Walnut Street in the Town of Vernon, Alabama, which is 694 feet north of the center of a certain ditch which crosses said Walnut Street near the southwest corner of Lot No. 125 in Nesmith Addition to the Town of Vernon, Alabama, according to the map or plat of said Nesmith Addition to the Town of Vernon, Alabama, as the same appears of record in the office of the Judge of Probate of Lamar County, Alabama, which said point may be further identified as being on the east side of said Walnut Street in said Town of Vernon, Alabama, a distance of 182 feet south of the accepted northwest corner of the lot owned by and in possession of Joe Price Redus and Bessie Redus, and which said point may be further identified as being on the east side of said Walnut Street 90 feet south of the accepted southwest corner of said Redus lot, and which said point may be further identified as being on the east side of said Walnut Street 105 feet north of the accepted northwest corner and 250 feet north of the accepted southwest corner of the lot owned by and in the possession of J. T. Maddox and Gaila F. Maddox, and from said point said line runs in an easterly direction and at right angles to said Walnut Street a distance of 580 feet to a certain stake with a tack in it, and along which line stakes were set every hundred feet by C. R. Franks, Surveyor, Registry No. 607, on to-wit, Dec. 31, 1953.'

Appellee also alleged that she and her predecessors in title have had adverse possession of the land on the south side of the line as claimed by her for more than 20 years preceding the filing of the bill of complaint, and that said line has been recognized as correct for more than said 20 year period.

The trial judge established the boundary line as claimed by the respondent-appellee.

The only assignment of error is:

'The Court erred in rendering the decree on page 83 in favor of the appellee wherein it established the true boundary to be as claimed by appellee.'

The evidence was taken ore tenus before the trial judge.

The only question before this court is whether or not the finding of the trial court is unsupported by the evidence or is palpably wrong so that we ought to reverse that decree.

'A decree establishing a line between coterminous lands on evidence submitted ore tenus in open court is presumed to be correct. * * * And in such a case the trial court's conclusions will not be disturbed unless palpably erroneous or manifestly unjust. * * *' Holoway v. Carter, 261 Ala. 51, 72 So.2d 728; 2 Ala. Dig., Appeal and Error, k1009(1).

The lands involved in this suit lie on the east side of Walnut Street, are located in Lots 119 and 121 of the Nesmith Addition to Vernon, Alabama, and include also additional land adjoining and lying east of Nesmith Addition, which additional land lies between the extended north and south boundary lines of the respective lots of the parties.

The lots of the subdivision adjoin each other from south to north in the following order: Lot 125 (the southern most lot), Lot 123, Lot 121, Lot 119, and Lot 114 (the northern most lot).

The 1900 plat gives Lot 121 a width of 220 feet from south to north on Walnut Street, and Lot 119 the same width or frontage, being 440 feet for both lots.

In or prior to 1919, Lots 121 and 119 were owned by J. P. Morton and his wife, Belle, or one of them. On later dates, the Mortons conveyed land in those two lots, in four separate parcels.

For convenience in this discussion, these four parcels are designated from south to north as the Maddox, Reed, Christian, and Redus lots, respectively.

In 1919, the Maddox lot on the south was conveyed; the Reed lot on the north was next conveyed in 1928; the next lot on the north, Christian lot, in 1932; and the next north lot (Redus) in 1935.

1919 description of Maddox lot recites in part:

'Beginning at the northwest corner of Lot no. 123' and run east along boundary line between Lots 123 and 121; thence north 145 feet; thence west parallel with south boundary line of said lot to Walnut Street; thence 'Southward along said street * * * to S.W. corner of Lot no. 121, place of beginning.' (Emphasis supplied.)

1928 description of Reed lot recites in part:

'Beginning on the East side of Walnut Street 145 feet North from the Southwest corner of Lot No. 121' and run eastward 'parallel with south boundary of lot 121,' thence north 105 feet, thence westward parallel to south boundary of Lot 119 to Walnut Street, thence south along cast side of Walnut Street 105 feet to place of beginning. (Emphasis supplied.)

1932 description of Christian lot recites in part:

'beginning at a point 120 feet North of the South West corner of Lot no. 119 * * * and running Southward along said Walnut Street 90 feet to the Northwest corner of G. S. Smith's lot.' (Emphasis supplied.)

Note that in 1932, G. S. Smith owned the Reed lot.

1935 description of Redus lot recites in part:

'Beginning at the southwest corner of Lot number 114' * * * (Note that this corner is also the northwest corner of Lot 119) * * * 'thence south along the west (this should be east) boundary line of Walnut Street a distance of 92 feet, thence east along the north boundary line of M. G. Anderson's lot' * * * (In 1935, M. G. Anderson owned the Christian lot) * * * 'thence northwesterly 92 feet' * * * 'thence west parallel with the north boundary line of M. G. Anderson's lot * * * to Walnut Street * * *' (Emphasis supplied and parenthesis added.)

Through mesne conveyances, appellant now holds the Christian lot, and appellee the Reed lot.

The lengths of the street frontage of these four lots, according to the deeds, from south to north, are respectively: 145, 105, 90, and 92 feet, a total of 432 feet, contrasted with the total frontage of 440 feet for Lots 119 and 121 shown by the original plat. Here is a difference of 8 feet.

Surveyor Estes testified that there was a difference of 8 feet between his measurement of 2356 feet on the ground and the distance of 2348 feet shown on the 'Town Plat.' The testimony is not clear, but this measurement appears to have been from a starting point 'on the south property line of the street south of the courthouse,' and measuring south to a ditch at the south boundary of Lot 125.

Estes stated:

'That could have been an 8-foot difference in the starting point. If you added them it would be a difference of 16-feet.'

Estes testified that in locating the disputed line; he started at the point south of the courthouse mentioned above, and measured south down east side of Walnut Street to locate the southwest corner of Lot 119.

When asked:

'Did you make measurements as to the property line between Defendant and J. T. Maddox?', Estes stated:

'No sir, not particularly.'

Surveyor Franks, also called by appellant, had made a survey in this case and established the disputed line 8 feet...