Deese v. Odom, 1 Div. 367

• Court: Supreme Court of Alabama
• Writing for the Court: LIVINGSTON
• Citation: 218 So.2d 134,283 Ala. 420
• Parties: Ethel S. DEESE et al. v. Joseph R. ODOM et al.
• Decision Date: 23 January 1969
• Docket Number: 1 Div. 367

Page 134

218 So.2d 134 283 Ala. 420 Ethel S. DEESE et al.
v.
Joseph R. ODOM et al. 1 Div. 367. Supreme Court of Alabama. Jan. 23, 1969.

[283 Ala. 421] Kilborn, Darby & Kilborn, Mobile, for appellants.

Page 135

Edw. P. Turner, Jr., Chatom, for appellees.

LIVINGSTON, Chief Justice.

This appeal is from a decree of the Circuit Court of Washington County, Alabama, in Equity, fixing a disputed boundary line.

The appellees, Odom and Turner, own separate parcels of land which join the East Boundary line of property owned by the appellants, Ethel S. and Glenn Deese. The appellants' land is described as follows:

"Northeast Quarter of Southwest Quarter and Southeast Quarter of Southwest Quarter in Section 17, Township 3 North, Range 3 West."

Appellee Odom owns approximately 60 acres adjoining on the East which land is described as follows:

"South Half of Northwest Quarter of Southeast Quarter and Southwest Quarter of Southeast Quarter, Section 17, Township 3 North, Range 3 West."

Appellee Turner owns approximately 20 acres adjoining that of appellee Odom on the North and also bordering on appellants' (Deeses') property on the East, and is described as follows:

"North Half of the Northwest Quarter of the Southeast Quarter of Section 17, Township 3 North, Range 3 West."

Appellee Odom filed a bill of complaint in the Circuit Court of Washington County, Alabama, in Equity, alleging a dispute as to the boundary line between the parties aforementioned, seeking the court's adjudication of the boundary line and damages for timber allegedly cut by the appellants. Appellee Turner also filed a bill of complaint alleging a dispute as to the boundary line between him and the Deeses, seeking the same relief as appellee Odom.

The appellants, Mr. and Mrs. Deese, filed their answer and cross bill to each suit, claiming as the boundary line "the old Kendall fence" and prayed that a surveyor be appointed by the court to locate said fence.

All the parties involved, through their respective solicitors, agreed that the two cases should be consolidated and the issues raised therein determined in one proceeding, with a separate decree to be entered in each case. This agreement was ratified by the trial court and an order consolidating the causes issued. The parties further agreed that a survey of the disputed property was necessary, and the court appointed a licensed surveyor, Mr. Ralph McVay, to survey and determine the location of the dividing line between the West Half of the Southeast Quarter and the East Half of the Southwest Quarter, Section 17, Township 3 North, Range 3 West, Washington County, Alabama, as well as the location of the old Kendall fence row.

The appellants subsequently amended their cross bill in each case so that if the old Kendall fence line be found not to be the dividing line between these coterminous properties, then, in that event, they claimed title by virtue of adverse possession.

The surveyor's report was filed with the court in April of 1965. Thereafter, exceptions[283 Ala. 422] were filed to the report on behalf of the appellants.

The consolidated cases came on for trial, and the court, after hearing the evidence, rendered separate decrees in each case establishing the boundary line as shown by the McVay survey. The survey having resolved the boundary line adversely to the claims of the Deeses, notice of appeal and security for costs were duly filed and the appeal perfected.

The appellants' brief contains nine assignments of error which are substantially argued and which we shall consider in the order in which they are argued.

The main question presented to us is whether or not the evidence supports the findings of the trial court. At the outset,

Page 136

therefore, we must point out that the trial court, sitting without a jury in this case, heard the evidence ore tenus, and it is axiomatic in such cases that a presumption of correctness must be indulged unless to do so would result in a gross miscarriage of justice. Consequently, unless the trial court's decision is shown to be palpably wrong and unjust and contrary to the great weight of the evidence, its decision should be affirmed. Lovelace v. McMillan, 265 Ala. 290, 90 So.2d 822;...