Cousins v. McNeel

• Decision Date: 04 May 2012
• Docket Number: 2110039.
• Citation: 96 So.3d 846
• Parties: William Samuel COUSINS v. Patricia McNEEL and George Houston.
• Court: Alabama Court of Civil Appeals

96 So.3d 846

William Samuel COUSINS

v.Patricia McNEEL and George Houston.

2110039.

Court of Civil Appeals of Alabama.

May 4, 2012.

Regina B. Edwards, Wetumpka; and Brandon C. Stone, Millbrook, for appellant.

Alan T. Hargrove, Jr., R. Mac Freeman, Jr., James R. Dickens, Jr., and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee Patricia McNeel.

Jonathan K. Vickers, Birmingham, for appellee George Houston.

MOORE, Judge.

William Samuel Cousins appeals from a judgment entered by the Autauga Circuit Court (“the trial court”) in favor of Patricia McNeel, declaring that McNeel is the owner of certain disputed property, awarding McNeel damages for Cousins's cutting of timber from the disputed property, and establishing the boundary line between the property owned by McNeel and that owned by Cousins, and in favor of George Houston, from whom Cousins had acquired his property, on Cousins's third-party claim against Houston alleging breach of a warranty deed. We affirm in part and reverse in part.

Procedural Background¹

In February 2007, McNeel sued Cousins, seeking a judgment declaring the boundary line between their adjacent properties. She also asserted claims, pursuant to Ala.Code 1975, § 35–14–2 and § 9–13–6(2), based on Cousins's alleged cutting and removal of timber from the disputed property, and common-law claims of trespass, negligence, and wantonness; she sought to recover the value of the timber cut and other damages. Cousins denied McNeel's allegations, asserting that he was the record owner of the disputed property or, alternatively, that he had acquired title to the disputed property through the doctrines of prescriptive or statutory adverse possession. Cousins also asserted a third-party claim against George Houston alleging breach of the warranty deed by which Houston had conveyed property to Cousins in November 2004.

Beginning on April 27, 2011, the trial court conducted a two-day bench trial; ore tenus evidence was presented at that trial. On May 11, 2011, the trial court entered its judgment, stating, in pertinent part:

“The Plaintiff, [McNeel], having pled her cause of action and provided testimony on the following claims, to wit: Trespass by cutting trees, Declaratory Judgment as to land line, Statutory action for cutting of trees, Common law action for recovery for cutting trees, Statutory action for converting cut timber and for Negligence/Wantonness. Upon hearing the testimony, the Court considers these claims as well as the Third Party Complaint on the warranty in the deed, this Court finds as follows:

“1. That the true, legal and actual east boundary line between ... [the property of McNeel] and west boundary line of ... [the property of Cousins] is as follows:

“ In the SE Quarter of Section 4, Township 17, Range 13

“Commencing at the Southeast corner of Section 4, Township 17, Range 13, Autauga County, Alabama, thence west along the South line of said Section 4, 361.5 feet to the point of beginning; thence North 361.5 feet, thence East to the east line of said Section 4, thence North along the east line of said Section 4 to the Northeast corner of the Southeast Quarter of said Section 4.

“ In the NE Quarter, Section 9, Township 17, Range 13

“Commencing in Independence Road 24.32 chains South from the Northwest corner of section 10, Township 17, Range 13, Autauga County, Alabama; thence North 24.32 chains, thence West 7.26 chains to the point of beginning, thence South 20 degrees West 22.80 chains, thence South 15 degrees West 7.50 chains to a point on Independence Road.

“2. Court finds that ... [Cousins] cut timber on ... [McNeel's] property after notice that there was a dispute with his action of cutting, trespassed upon her land and wantonly damaged the property of [McNeel] .... [T]his Court finds in favor of ... [McNeel] and against ... [Cousins] on wantonness, double damage for statutory damage and for the lease loss of revenue and assess her damage at $41,050.00 plus cost of Court.

“3. Court finds no indication, proof or inference that ... Cousins nor ... Houston ever did any act of possession on the disputed property until Cousins trespassed after 2004. Therefore the defense of adverse possession does not apply.

“4. Defendant Cousins is directed to immediately and not after 60 days, remove all markings on the ground, trees, fencing, wire, post, tape and pins on or along any of the disputed area other tha[n] the actual, true, legal line established by this Order.

“5. Court finds that ... Cousins got exactly what he bargained for in the property located east of the line established herein. Therefore, there is no [ ] contribution from Houston to Cousins.”

On June 10, 2011, Cousins moved the trial court to alter, amend, or vacate its judgment. In his motion, Cousins asserted, among other things, that it was unclear from the language of the May 11, 2011, judgment whether the trial court had ruled on Cousins's breach-of-warranty-deed claim against Houston, that the legal descriptions contained in the trial court's judgment were unsubstantiated and unsupported by any evidence before the trial court, and that McNeel was not entitled to damages for the cutting of timber from the disputed property. On August 19, 2011, the trial court denied that motion. Cousins timely filed his notice of appeal.

Evidentiary Background

The evidence presented to the trial court established the following pertinent facts. McNeel owns property in Autauga County, which her now-deceased husband, Joe McNeel, Jr., had conveyed to her in 2000; McNeel's husband had inherited that property in the 1970s from his aunt, Stella Underwood. The property had been in Underwood's family for many years. We refer to this property as “the McNeel property.” It was undisputed that, at the time of the trial, a creek ran near the eastern border of the McNeel property and that a fence was located to the east of the creek, up a hill and some distance away from the creek. Until 2004, Houston owned property lying to the east of and adjacent to the McNeel property. Houston had inherited his property in 1978 from a family member who had owned that property for many years.

In November 2004, Cousins purchased Houston's property for $500,000. The creek and the fence referenced above, which lied at or near the eastern boundary of the McNeel property, was located at or near the western boundary of Cousins's property. Whether the boundary line between the two properties was located at the creek or at the fence is at the center of this dispute. The property lying between the creek and the fence is hereinafter referred to as “the disputed property”; according to trial testimony, the disputed property totaled approximately 30 acres.²

The following language was included in Cousins's purchase agreement:

“Seller/s agree to sell and convey to Purchaser/s and the Purchaser/s agree to purchase from Seller/s upon the following terms and conditions, the following described real property, in its AS IS condition: Approximately 250 acres and Residence, Township 17 North, Range 13 East, Sections 3, 4, 9, and 10 in Mulberry Community of Autauga County. Actual acreage must be verified by survey.”

A copy of the deed by which Houston had obtained title to the property was attached to the purchase agreement. Houston's real-estate agent, Mike Vaughn, arranged for surveyor Ronald Burke to perform the required survey. A copy of correspondence sent by Vaughn to Burke, by facsimile transmission, was introduced into evidence; in that correspondence, Vaughn indicated that, although the deed by which Houston had acquired the property indicated that Houston's property consisted of 231 acres, Houston had indicated that he believed his property totaled approximately 250 acres. Vaughn also indicated that, according to Houston, the “creek is the line all the way up the west boundary ... there are also a lot of cattle cross fences that do not follow the actual property lines.”

Burke testified that, in preparing the survey, he had consulted records in the county tax assessor's office, which had indicated that Houston owned approximately 270 acres and that the creek served as the western boundary of Houston's property. Burke and his crew then located the creek and the pertinent section corners. Using those identifiers, Burke's survey indicated that Houston's property totaled 264 acres.

Burke testified that

“[t]he [Houston] deed is vague and not very good to start with, which we run into a lot. A lot of times you have to take a deed and understand what is the intent of the deed because basically they don't make any sense. It said something about a fence. And in the process of the survey I saw the fence at the top of the hill where the fields met the woods. I asked about the fence.... I was told it was just a fence to keep the cattle from getting to the bottom land.... Mike Vaughn was the only person I ever talked to. And so I didn't locate the fence because they told me it was just a fence to keep the cattle out of that bottom land that you can't farm anyway. It's just like a ravine.... And so as soon as the crew got there, the tax map indicated the fence was the line.... And I did call the tax assessor's office and ask them, that line does represent the creek, and they said it does. And so I told the survey crew to start locating the creek because it was going to take a while to locate that creek. So that's the first thing we did was locate that creek. The rest of the lines were just GLO forty lines. So that's why we went to the creek. I didn't know if there was a fence down there by that creek at one time and that was the fence that everybody was talking about. And then there was a—something about three acres in the corner of the forty which would be out in the middle of that field which didn't make any sense. And that's why I went to the creek.”

Burke testified that “nothing was ever said to me ever that the creek is maybe not...