Graham v. McKinney

• Decision Date: 27 January 1984
• Citation: 445 So.2d 892
• Parties: Jimmy Dee GRAHAM and Judy Johnson Graham v. Walter H. McKINNEY, Jr. 82-577.
• Court: Alabama Supreme Court

Page 892

445 So.2d 892

Jimmy Dee GRAHAM and Judy Johnson Graham v. Walter H. McKINNEY, Jr.

82-577.

Supreme Court of Alabama.

Jan. 27, 1984.

James K. Davis of Fite, Davis & Atkinson, Hamilton, for appellants.

Bobby R. Newman of Nolen & Newman, Fayette, for appellee.

FAULKNER, Justice.

This case arose from a dispute between coterminous land owners over the boundaries separating their property. Appellants, plaintiffs below, contend that the trial court's decree establishing the coterminous boundaries is erroneous as a matter of law. We affirm.

The Grahams' (appellants') land lies immediately northeast of the McKinneys' (appellees') land. The disputed boundaries are a north-south line, and an east-west line running east from the southern point of the north-south line.

The Grahams purchased their property in August of 1979. About six months later, the McKinneys purchased their property and engaged Mr. Chester A. Smith, a licensed and registered engineer and land surveyor, to conduct a survey (the McKinney survey) of their property. When completed, this survey indicated that the boundary line on the west side of the Graham property was several feet to the east, and the line to the south of the Graham property was several feet to the north, of the boundary lines claimed by the Grahams.

In order to settle the discrepancy, the Grahams filed suit against the McKinneys in the Circuit Court of Fayette County, Alabama, on March 5, 1982. The Grahams asked the court to establish the true coterminous boundary lines between their property and that of the McKinneys.

The trial court rendered a memorandum opinion and order on February 8, 1983, establishing the boundary lines to be the lines described by the McKinney survey.

The Grahams appealed to this court from that order, alleging: (1) the trial court erred by requiring appellants to establish the elements of adverse possession as to the disputed strip of land in order to prevail; and (2) the trial court's order establishing the boundary lines according to the McKinney survey was palpably wrong and manifestly unjust. We do not agree.

At the outset, it appears that appellants have interpreted the trial court's opinion incorrectly. The opinion did not require appellants to prove the elements of adverse possession in order to prevail as to their proposed boundary lines. Rather the lower court merely pointed out that appellants failed to meet their burden of proof under the theory of adverse possession so as to conclusively establish that the lines they assert are the true boundary lines.

In Kerlin v. Tensaw, 390 So.2d 616, 618 (Ala.1980), we stated:

"Boundary disputes are subject to a unique set of requirements that is a hybrid of the elements of adverse possession by prescription and statutory adverse possession. In the past there has been some confusion in this area, but the basic requirements are ascertainable from the applicable case law. In a boundary dispute, the coterminous landowners may alter the boundary line between their tracts of land by agreement plus possession for ten years, or by adverse possession for ten years.... [Citations omitted.] The rules governing this type of dispute are, in actuality, a form of statutory adverse possession. [Citations omitted]."

This language indicates that in a boundary dispute a coterminous landowner has at least two methods by which he himself can establish the true and correct boundary line, namely, (1) by agreement, or (2) by adverse possession. However, should the landowner fail to meet the burden of proof under either of these methods, it does not necessarily follow that the landowner is precluded from prevailing in the suit.

In Ray v. Robinson, 388 So.2d 957, 962-63, (Ala.1980) (quoting Stansell v. Tharp, 245 Ala. 270, 16 So.2d 857 (1944)), this court noted:

"The burden is not on either party as to the true location of the line in the sense that if the evidence is equally balanced he loses the controversy. While the bill sets out complainants' contention as to the location of the true line, the primary burden which complainants carry is to sustain the allegations showing the controversy, and that a situation exists which invokes the equity power of the court to find and fix the location of the line in dispute.... If complainants do not satisfactorily show that their contention is correct as to the true line, the cause is not due to be dismissed, nor does it necessarily result in finding according to the contention of respondent; but the court will proceed to find the true line, whether it is as either party contends. They may both be wrong...