Cloud v. Southmont Development Co., 6 Div. 796

CourtSupreme Court of Alabama
Writing for the CourtMcCALL; HEFLIN
Citation253 So.2d 298,287 Ala. 544
Docket Number6 Div. 796
Decision Date07 October 1971
PartiesEmmett W. CLOUD et ux. v. SOUTHMONT DEVELOPMENT COMPANY, a Corp., et al.

Page 298

253 So.2d 298
287 Ala. 544
Emmett W. CLOUD et ux.
v.
SOUTHMONT DEVELOPMENT COMPANY, a Corp., et al.
6 Div. 796.
Supreme Court of Alabama.
Oct. 7, 1971.

[287 Ala. 545]

Page 299

Corretti, Newsom, Rogers & May, Birmingham, for appellants.

Dominick, Fletcher, Yeilding & Dominick, Birmingham, for appellees.

McCALL, Justice.

The complainants appeal from a final decree in which the trial court found that the complainants failed to meet the burden of proof. The decree quiets title in the respondents to a particularly described tract of land that lies east of and adjacent to a tract owned by the complainants. The decree also locates and establishes the common boundary between the parties as contended for by the respondents.

The complainant-appellants' assignments of error Nos. 6, 7, 8, and 12 all question the fixing of the boundary line as contended for by the respondent-appellees, and the [287 Ala. 546] refusal of the court to fix one as contended for by the appellants. These are the only assignments argued by the appellants in their brief, and they are treated together. The complainants rely solely on the proposition that since the deed to them conveyed all of the property west of the top of the bluff in the quarter-quarter section involved, this call in their property description should control.

Complainants' land is described in their deed of conveyance from Herold J. Schwab and others, dated July 15, 1966, as follows:

'Part of the Southwest quarter of the Northwest quarter, Section 32, Township 18, South, Range 2, West, containing 20 acres more or less, said land described as being all the land West of the top of the Bluff. Situated in Jefferson County, Alabama, as described by deed from J. H. Morris and wife, Emma Morris to Jonas Schwab Company, Inc., recorded in Volume 239, Page 458, dated January 19, 1899. Said Parcel commonly referred to as Tract 27 on the real property map of said Section 32, Township 18, Range 2 West, Jefferson County, Alabama. * * *'

The complainants assert that the east line of their property, which is the disputed boundary between the parties, is the edge of the bluff in the said SW 1/4 of the NW 1/4, because the call in their deed is for all land west of the top of the bluff, and since the call is from a natural monument or boundary, this call prevails over any inconsistent calls, citing Van Valkenburg v. Geron, 249 Ala. 467, 31 So.2d 767; Blalock v. Johnson, 256 Ala. 349, 54 So.2d 611; Spires v. Nix, 256 Ala. 642, 57 So.2d 89; Williams v. Bryan, 197 Ala. 675, 73 So. 372; Ayers v. Watson, 113 U.S. 594, 5 S.Ct. 641, 28 L.Ed. 1093; Sheppard Envelope Co. v. Arcade Malleable Iron Co., 335 Mass. 180, 138 N.E.2d 777; De Escobar v. Isom, 112 Cal.App.2d 172, 245 P.2d 1105.

The edge of the top of the bluff from which the complainants claim that their land extends to the west, in the quarter-quarter section, runs in a generally northeast and southwest direction. The course of the edge of the bluff is irregular and is broken or crossed by openings at several places through which the ground below the edge of the bluff slopes gradually upwards and toward the west. These openings are referred to as draws. In 1969, the complainants had a plat of survey of the edge of the bluff made by a civil engineering and land surveying firm. This survey locates the line which the complainants contend is the common boundary between the parties.

The respondents, whose adjoining lands lie on the east of complainants, contend

Page 300

that the course of the top of a ridge, on top of the bluff, is the boundary between them. The ridge line is a short distance west of the edge of the top of the bluff. It was surveyed in early 1928 or prior thereto, by a civil engineer and land surveyor named Schoel and it is called the Schoel line hereafter. When the respondent Morgan inspected this line, which his grantor, Joel B. Bearden, pointed out to him as the west property line, before he purchased in 1957, the respondent found some iron pins on the line where the turns or angles are made.

The Schoel line also runs in a northeast and southwest direction and is described as a 'traverse of Bluff or Ridge in SW 1/4 of NW 1/4 going South from North line of 40.' Making east-west measurements of distances between the two lines of survey, at different points along their course, reveals intervals that vary from almost a contact of the two lines with each other, to distances of as much as seventy-five feet, or possibly more. Thus the respective contentions of the parties result in an overlapping of their properties when the two separate descriptions are sought to be platted with each other. There is no apparent dispute as to the correctness of the survey of either the Schoel line or of the line as...

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2 practice notes
  • Lilly v. Palmer
    • United States
    • Supreme Court of Alabama
    • August 1, 1986
    ...the claimant has paid taxes on the property for the statutory period. Code 1975, § 6-5-200(a)(2). In Cloud v. Southmont Development Co., 287 Ala. 544, 547, 253 So.2d 298, 300 (1971), however, we explained that this prerequisite is inapplicable if the adverse possession dispute concerns a bo......
  • Hagler v. Clark
    • United States
    • Supreme Court of Alabama
    • September 3, 1976
    ...§§ 116 and 117, Code of Alabama 1940, Recompiled 1958, are admissible when material to the issues. Cloud v. Southmont Development Company, 287 Ala. 544, 253 So.2d The judgment is hereby affirmed. AFFIRMED. HEFLIN, C.J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur. ...
2 cases
  • Lilly v. Palmer
    • United States
    • Supreme Court of Alabama
    • August 1, 1986
    ...the claimant has paid taxes on the property for the statutory period. Code 1975, § 6-5-200(a)(2). In Cloud v. Southmont Development Co., 287 Ala. 544, 547, 253 So.2d 298, 300 (1971), however, we explained that this prerequisite is inapplicable if the adverse possession dispute concerns a bo......
  • Hagler v. Clark
    • United States
    • Supreme Court of Alabama
    • September 3, 1976
    ...§§ 116 and 117, Code of Alabama 1940, Recompiled 1958, are admissible when material to the issues. Cloud v. Southmont Development Company, 287 Ala. 544, 253 So.2d The judgment is hereby affirmed. AFFIRMED. HEFLIN, C.J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur. ...

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