Gilbreath v. Harbour

• Decision Date: 22 May 2009
• Docket Number: 2071242.
• Citation: 24 So.3d 473
• Parties: Sherry L. GILBREATH and Raymond W. Gilbreath v. Charlotte HARBOUR and Richard Earl Harbour.
• Court: Alabama Court of Civil Appeals

24 So.3d 473

Sherry L. GILBREATH and Raymond W. Gilbreath v. Charlotte HARBOUR and Richard Earl Harbour.

2071242.

Court of Civil Appeals of Alabama.

May 22, 2009.

John H. Ufford II, Crossville, for appellants.

J. David Dodd and J. Eric Brisendine of Scruggs, Dodd & Dodd, Attorneys, Fort Payne, for appellees.

THOMAS, Judge.

Sherry L. Gilbreath and Raymond W. Gilbreath own a 30-acre parcel of real property located in Crossville. Their deed also conveyed to them a 21-foot strip of land running south from their property to the Crossville-Oak Hill public road. A driveway to the Gilbreaths residence is located generally inside the 21-foot strip. The western boundary of their property is the quarter section line of the northwest quarter of the northeast quarter of Section 33.

Charlotte Harbour and Richard Earl Harbour own a parcel of property adjoining the Gilbreaths' property on its western border. The Harbours' eastern boundary is described in their deed as the quarter section line of the northwest quarter of the northeast quarter of Section 33. The Harbours erected a fence ("the Harbour fence") along, but not on, the easternmost boundary of their property. The Harbour fence parallels the Gilbreaths' driveway but is located along the edge of an earthen berm or bank that sits above the drive and the ditch alongside of it. Thus, there exists a strip of land between the Harbour fence and the driveway.

The Gilbreaths and the Harbours had been neighborly until Raymond Gilbreath had the Harbours' son arrested in 2001. The neighborly relationship deteriorated at that point, and the Gilbreaths insisted that the Harbours were not entitled to use the driveway or any of the land located between the driveway and the Harbour fence. The Harbours had their property surveyed in 2002, and they insisted that they owned the land between the driveway and the Harbour fence. In fact, the Harbours' survey revealed that, at certain points, the Gilbreaths' driveway crossed the quarter section line and encroached upon their property.

In February 2004, the Gilbreaths sued to establish a boundary line between the properties and claimed that they had adversely possessed the strip of land between the driveway and the Harbour fence. In addition, the Gilbreaths claimed that the Harbours' son, Timothy Harbour, had trespassed on their property, and they sought damages for trespass and a restraining order against him. The parties agreed, and the trial court ordered, that the trespass claim and other issues pertaining to Timothy Harbour would be tried separately.¹

After a trial on the boundary-line issue, the trial court entered a judgment declaring the boundary line between the properties, determining that the Gilbreaths had not proven that they had adversely possessed the strip between the Harbour fence and the driveway, awarding the Gilbreaths a prescriptive easement over the driveway, and denying the Harbours a prescriptive easement over the driveway. The Gilbreaths appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6). We dismissed that appeal, because, although the trial court had rendered an order certifying the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., that order had never been input into the State Judicial Information System ("SJIS") and had therefore never been entered as required by Rule 58(b), Ala. R. Civ. P. See Gilbreath v. Harbour, 3 So.3d 875, 878 (Ala.Civ.App.2008). After our dismissal of the first appeal, the trial court directed the entry of its order certifying the boundary-line judgment as final, and the Gilbreaths again appealed to the Alabama Supreme Court; that court transferred that appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

On appeal, the Gilbreaths complain that the trial court erred in determining that they had not proven that they had adversely possessed the driveway and the strip of land between the driveway and the Harbour fence. In addition, the Gilbreaths argue that, because the trial court determined that they had established a prescriptive easement over the driveway, it erred in not finding that they had adversely possessed at least that part of the Harbours' property over which portions of the driveway run. The Harbours, however, contend that the trial court correctly concluded that the Gilbreaths had failed to present clear and convincing evidence of adverse possession because the testimony at trial regarding the upkeep of the disputed strip was conflicting and because any actions taken by the Gilbreaths to mow and clear the strip were not hostile.

"`Where a trial court hears ore tenus testimony [in a boundary-line case], ... its findings based upon that testimony are presumed correct, and its judgment based on those findings will be reversed only if, after a consideration of all the evidence and after making all inferences that can logically be drawn from the evidence, the judgment is found to be plainly and palpably erroneous.' Bearden v. Ellison, 560 So.2d 1042, 1043 (Ala.1990). The presumption of correctness accorded to the trial court's findings based on evidence presented ore tenus `is particularly strong in boundary line disputes and adverse possession cases, and the presumption is further enhanced if the trial court personally views the property in dispute. Wallace v. Putman, 495 So.2d 1072, 1075 (Ala. 1986).' Bell v. Jackson, 530 So.2d 42, 44 (Ala.1988)."

Shirey v. Pittman, 985 So.2d 484, 486 (Ala. Civ.App.2007). However strong the ore tenus presumption in adverse-possession cases, "[t]he presumption ... is inapplicable where the facts are undisputed and the issue is resolved simply by applying the relevant law to these undisputed facts." Lilly v. Palmer, 495 So.2d 522, 526 (Ala. 1986).

Raymond Gilbreath testified that he had been familiar with the properties in question since 1966, because he had worked for one of his predecessors in title, Charles Peek. In addition, after other members of the Peek family had owned the Gilbreaths' property during the 1960s and 1970s, Raymond's brother, Jimmy Gilbreath, purchased the property in 1986. Raymond helped Jimmy maintain the property. Jimmy sold the property to Raymond in 1992. Raymond testified that he and Jimmy had built up the driveway with chert from Raymond's chert pit over the years and that they had both mowed and bushhogged the strip of land on each side of the drive for many years. According to Raymond, the Harbour fence or the bank along the driveway upon which the Harbour fence sits had been recognized as the boundary between the properties for many years by his predecessors in title. Sherry Gilbreath also testified that they owned the land on both sides of the driveway, which, she said, she and Raymond had maintained by mowing it.

Rae Ellen Peek, who had owned the Gilbreaths' property along with her husband Julian "Jabbo" Peek from 1978 until 1985, testified that Jabbo had maintained the driveway and the ditches on both sides by grading the driveway as needed, cleaning the ditches of debris, and mowing the grass. She said that she and her husband had allowed the daughter and the sister of a neighboring landowner, Gene Upton, to use the driveway when they were either living on some adjoining property or preparing to build on that property.

Jimmy Gilbreath testified that he bought the Gilbreaths' property from Rae Ellen after Jabbo died. According to Jimmy, he told the Uptons that they could no longer use the driveway. Other than a few people who might have made a wrong turn and family and friends using the driveway to travel to and from the Gilbreaths' house, no one else used the driveway while he owned the property. Jimmy said that he put a "Private Drive — No Trespassing" sign at the end of the driveway in 1987 or 1988, after his father died, because his mother was at the house alone during the week and he did not want people to drive down the driveway thinking it was a road. Like Raymond, Jimmy testified that his understanding was that the property line between his property and the Harbours' property was the Harbour fence; he said that he had maintained both sides of the driveway.

Charles Peek, who owned the Gilbreaths' property in 1967, testified that the Harbour fence was not in existence when he owned the property. However, he said that the Harbours' predecessor in title farmed the land up to the ditch bank at that time. According to Peek, the driveway and the ditch bank along it was considered the boundary line because he and his family had kept the area clean and mowed.

Richard Harbour testified that he had built the Harbour fence, first in the late 1970s or early 1980s and then again in the early 2000s. Harbour testified that he had taken title to his property from his mother in the late 1970s or early 1980s; he said that he had not had his property surveyed at that time. According to Harbour, he had always understood that the ditch was the property line and that anyone who needed to use the driveway was free to access it. Specifically, Harbour testified that he believed that his property extended from "ditch to ditch," apparently referencing the ditch bank between the driveway and the Harbour fence and a ditch bordering the western border of his property. He said that he thought the driveway was "a joint thing."

In fact, Harbour testified that he had sometimes used the driveway, although he had not used it in more recent years other than a few times per month. When asked why he had not placed the Harbour fence on the boundary line, Harbour explained that he had placed the Harbour fence along the earthen berm because, had he placed it in the ditch, the cows could have stepped over it. Harbour said that he had maintained the strip between the driveway and the Harbour fence over the years, noting that the area where he had placed the Harbour fence was "growed completely up" in the later 1970s or early 1980s when he...