Gunn v. Mickle

• Decision Date: 19 December 1986
• Citation: 501 So.2d 466
• Parties: Richard GUNN and Mary Gunn v. Lillian MICKLE. 85-528.
• Court: Alabama Supreme Court

Page 466

501 So.2d 466

Richard GUNN and Mary Gunn v.Lillian MICKLE.

85-528.

Supreme Court of Alabama.

Dec. 19, 1986.

John J. Dobson, Oneonta, for appellants.

Ray Lowery, Pell City, for appellee.

MADDOX, Justice.

This case involves a boundary line dispute and an adverse possession claim.

The plaintiff, Mrs. Mickle, inherited a parcel of land in 1973; the land had been owned by her ancestors for many years before this controversy arose.The defendants, Mr. and Mrs. Gunn, acquired their fee simple interest in 1960 by inter vivos transfer.The two parcels are coterminous, the southern boundary of the Gunns' tract being the northern boundary of Mrs. Mickle's tract.

In 1984, Mrs. Mickle filed for injunctive relief in the Blount County Circuit Court, alleging that the defendants were building a fence on their southern boundary which encroached on her land.The defendants in their answer alleged that the property in question belonged to them based on their warranty deed and a survey, or, in the alternative, that they had acquired ownership by adverse possession.

The case was tried ore tenus.The trial court withheld decision pending an on-site inspection.After viewing the disputed strip, the court ruled that the plaintiff's survey was correct, that by deed the disputed property belonged to the plaintiff, and that the defendants had failed to produce evidence sufficient to prove their adverse possession claim.

Appellants claim that the trial court should have found that they had title by adverse possession.As they correctly state in their brief, in an adverse possession case involving coterminous landowners the claimant must prove actual possession of the disputed strip under a claim of right, openly and exclusively, for a continuous period of ten (10) years.Cambron v. Kirkland, 287 Ala. 531, 253 So.2d 180(1971).This proof constitutes essentially the same as that traditionally required for adverse possession--proof of open, notorious, hostile, continuous, and exclusive possession for the requisite period of time.Cockrell v. Kelley, 428 So.2d 622(Ala.1983).Claimants bear a substantial burden in proving these elements.

Appellants in their brief cite extensively to the record, directing this Court's attention to facts which, they claim, demonstrate that the trial court's decision was plainly incorrect.Our review of the evidence is, however, somewhat limited, because the case was tried orally to the judge, and in such cases, we look only for some credible evidence to support the court's ruling.As this Court stated in another adverse possession case:

"Of course, any time a trial court has heard evidence presented ore tenus and resolves conflicting questions of fact in favor of one of the parties, its findings will not be disturbed on appeal unless they were clearly erroneous or manifestly unjust.Evidence in adverse possession cases is especially difficult to weigh from the vantage point of an appellate court.Witnesses often testify with reference to exhibits and make gestures not capable of preservation in the...