Graham v. Hawkins
| Decision Date | 17 August 1967 |
| Docket Number | 7 Div. 757 |
| Citation | 281 Ala. 288,202 So.2d 74 |
| Parties | Cary GRAHAM v. George C. HAWKINS, Sr., et al. |
| Court | Alabama Supreme Court |
Roy D. McCord and Inzer, Martin, Suttle & Inzer, Gadsden, for appellant.
Geo. C. Hawkins, Jr. of Hawkins & Rhea, Gadsden, for appellees.
This appeal is from a decree establishing a boundary line between the parties who are coterminous owners of city lots in Gadsden. The line established by the trial court was one based upon the adverse possession of appellees and their predecessors in title.
The basic question presented is whether the adverse possession of appellees' predecessors can be tacked to that of appellees.
In 1923, T. A. Stringer owned Lot 10 and other lots in Block 18 of the Kyle Addition. On February 19, 1927, he sold adjoining property and the west half of Lot 10 to Ethel Rutenburg. There was a house on the property and the Rutenburgs built a lattice fence along their eastern boundary. The fence started a few feet south of the northeast corner of their lot and drifted east as it was built southward, and it ended at the southeast corner 4.9 feet east of the dividing line between the west half and the east half of Lot 10. The fence remained there from 1927, until it was replaced by appellee with a metal fence in November, 1963. On February 19, 1964, appellant tore down the metal fence, after requesting appellees to remove it because it was on his property. This act precipitated the filing of the bill of complaint, which prayed, in addition to the establishment of the boundary line, for injunctive relief and damages for the removal of the metal fence.
The appellant has a deed to the east half of Lot 10 and other property which came to him by mesne conveyances from the common source of title, T. A. Stringer. The east half of Lot 10 is and has been vacant. Appellant's deed was dated October 18, 1963.
The history of appellees' title is: 1927--deed from Stringer to Rutenberg; 1945--Rutenburg to George C. Hawkins, Jr.; 1955--Hawkins, Jr. to Hicks; 1960--Hicks to George C. Hawkins, Sr. and wife, appellees. In every deed in appellees' chain of title, the deed described other property and the west half of Lot 10; in every deed in appellant's chain of title, the deed described other property and the east half of Lot 10.
Thus, appellant and his predecessors in title have had paper title to the triangular strip which is the subject of this controversy, but appellees and their predecessors have had it fenced as part of their yard and claimed it for thirty-seven years.
The trial court found that the successive owners of appellees' lot, beginning with 1927, occupied said premises and the residence located thereon; and that, from the Rutenburgs to date, each of the grantees were successively placed in possession by their grantors and continuously, without a break, held possession adversely of the disputed property. The court also said:
'The Court further finds that along the Eastern boundary line of the said premises owned and occupied by Plaintiffs and their predecessors in title, from at least 1927, until the spring of 1963, a wooden lattice fence openly, continuously, exclusively and notoriously, existed and was maintained along said Eastern boundary line beginning at the Northeast corner of said premises and running in a Southern direction for about one-half the depth of said premises, and that during said period of time from the point in about the middle of said Eastern boundary line to the Southeast or front corner of said premises there was maintained and existed a hedge from said midpoint of said Eastern boundary line to within a few inches of the public sidewalk running South of and in front of the residence situated on said premises; that in the spring of 1963, said fence blew down and was propped up on at least two different occasions and that it and said hedge were removced in about November, 1963, at which time Plaintiffs constructed a metal fence along the entire Eastern boundary line of said premises owned and occupied by Plaintiffs on exactly the same line as said wooden lattice fence and said hedge had theretofore existed.
'The Court further finds that at no time until the incident giving rise to this proceeding, did Defendant or any of his predecessors in title dispute or disagree that said wooden lattice fence and said hedge, and later said metal fence, constituted the boundary line between the property owned by Plaintiffs and that owned by Defendant, but on the contrary that no such dispute or disagreement thereto was made in spite of the continuous, open, notorious, adverse, exclusive and hostile maintenance and existence of said wooden lattice fence and said hedge, and later said metal fence, situated at the same place on said Eastern boundary line, from at least 1927, to the incident giving rise to this proceeding in 1964.
'The Court further finds that Plaintiffs and their predecessors in title, have had exclusive, open, notorious, continuous and adverse possession of said premises up to and including said Eastern boundary line (more particularly described hereinafter) on which was maintained and existed said wooden lattice fence, hedge and later said metal fence, for substantially more than 20 years before the filing of this proceeding; and that said holding by Plaintiffs and their predecessors in title is more than sufficient to meet the tests prescribed by law for establishing said Eastern boundary line as the true and lawful boundary line between the property of Plaintiffs and the property of Defendant.'
Appellant's argument is that the averse possession of the Rutenburgs cannot be...
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Watson v. Price
...sufficient light on this problem for resolution of the instant case. Mr. Justice Merrill, speaking for the Court in Graham v. Hawkins, 281 Ala. 288, 202 So.2d 74 (1967), applied, in a similar factual context, the tacking "Since each grantee holding under (their predecessors in title) entere......
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Sparks v. Byrd
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...575, 576, 298 So.2d 9 (1974): "The erection and maintenance of a fence is one of the clearest symbols of possession. Graham v. Hawkins, 281 Ala. 288, 202 So.2d 74 (1967). Cutting of timber, although it may not, standing alone be sufficient, is one factor to consider. Cf. Lay v. Phillips, 27......
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