Denton v. Corr, 6 Div. 655.

• Decision Date: 22 January 1948
• Docket Number: 6 Div. 655.
• Citation: 250 Ala. 149,33 So.2d 625
• Parties: DENTON v. CORR.
• Court: Alabama Supreme Court

33 So.2d 625

250 Ala. 149

DENTON v. CORR.

6 Div. 655.

Supreme Court of Alabama

January 22, 1948

P A. Nash and L. P. Waid, Jr., both of Oneonta, for appellant.

R. G. Kelton, of Oneonta, for appellee.

GARDNER Chief Justice.

Statutory action of ejectment.

Plaintiff Aline Denton (appellant) is the owner of lot 54 in Block 2 of the original survey of the town of Oneonta, Alabama. Defendant R. C. Corr owns lots 55 and 56 in said block, lot 55 adjoining plaintiff's lot 54.

In count 1 plaintiff seeks to recover an 'eight foot strip off the southwest side of lot 54, in block 2.' As to this count defendant disclaimed possession of any part of lot 54 and judgment was entered for plaintiff on this disclaimed as to account 1.

In count 2 plaintiff seeks to recover the eight foot strip in said block 2 with particular description, but without reference to lot 54. To this count defendant pleaded a disclaimer as to lot 54, and suggested that the suit arises over a controversy as to the true boundary line between lot 54 owned by plaintiff and lot 55 owned by defendant.

The plea describes what defendant claims is the true boundary line. The issue raised on this plea as to the true boundary line was submitted to the jury resulting in a verdict in favor of defendant and establishing the true boundary line as set out in said plea.

From the judgment following plaintiff prosecutes this appeal.

Plaintiff in large part relief upon proof of adverse possession to establish the line as contended for by her in count 2, while defendant, resting upon expressions in some of our older cases, insists the principle of adverse possession is inapplicable where the matter of boundary line dispute under Title 7, Section 942, Code 1940, is concerned. But in the recent case of Mintz v. Millican, 248 Ala. 683 29 So.2d 230, this court following Forrester v McFry, 229 Ala. 324, 157 So. 68, held that when the defendant described the true line by courses, distances and the like and not confining it to the true location of the government survey, the true boundary line may be established by adverse possession. The argument of counsel for appellee to the contrary, therefore, is without merit.

The record is rather voluminous and a discussion of the evidence would serve no useful purpose. Suffice to say that plaintiff offered proof to show that she acquired this property from the Buckner estate and that her grantors had owned the property for a much longer period than ten years at the time the defendant acquired title to lots 55 and 56. Her evidence tended to show that the Buckners were in possession of this eight foot strip of land, and that she acquired possession from said estate to the property here in question. There was a house that protruded on a part of this eight foot strip that fronts on the street and an old barn in the rear fronting on an alley. There was evidence, also, as to an old fence or hedge row.

On the contrary defendant insists, and offers proof to the effect, that upon his purchase of the property in May, 1936, and upon discovering after a survey that the eight foot strip belonged to lot 55, he complained to Mrs. Buckner concerning it and that she immediately consented for the old barn to be removed. The jury could infer from the proof offered that Mrs. Buckner made no claim to any property except that contained in lot 54, which was hers. This evidence indicating a lack of intention to hold adversely on the part of Mrs. Buckner was admissible proof and suffices to present a jury question concerning adverse possession under Lecroix v. Malone, 157 Ala. 434, 47 So. 725; Trufant v. White, 99 Ala. 526, 13 So. 83; Brantley v. Helton, 224 Ala. 93, 139 So. 283.

Defendant offered proof tending to show that at the time of the purchase by the plaintiff of lot 54 in August, 1939, the Buckner estate, from whom she claimed title, was not in possession of the property described in count 2 of the complaint and here in dispute, and that she did not acquire possession of this strip from the Buckner estate. It was therefore, insisted that there was no...