Hackman v. Maund

• Decision Date: 22 December 1983
• Citation: 443 So.2d 899
• Parties: Harold HACKMAN and Carol Hackman v. Columbus Frank MAUND and Juanita Maund. 82-486.
• Court: Alabama Supreme Court

Page 899

443 So.2d 899

Harold HACKMAN and Carol Hackman v. Columbus Frank MAUND and Juanita Maund.

82-486.

Supreme Court of Alabama.

Dec. 22, 1983.

Jack W. Smith of Smith & Smith, Dothan, for appellant.

G.M. Harrison, Jr. of Merrill & Harrison, Dothan, for appellees.

SHORES, Justice.

Harold and Carol Hackman, defendants, appeal from a judgment against them in this boundary line dispute between coterminous landowners. We affirm.

The Maunds, plaintiffs, have owned since 1964 eighty acres of land in Geneva County, Alabama. The east boundary line of their property fronts on Morris Street, a paved, city-maintained street. The Hackmans own the forty acres of land lying directly south of the Maunds' westernmost forty acres. Access to the Hackman property is by way of Dr. Steven Road, a small, unpaved road running west from Morris Street along the southern boundary line of the Maunds' eastern forty to the eastern side of the Hackmans' forty. From that point westwardly, the road is a dirt "field" road. It is the strip of land on which the field road lies that is disputed. The strip is about thirty-three feet wide, measuring north from an old fence which parallels the southern edge of the field road. The road itself is generally straight, except for a slight bend in it; as it extends westward, it tends toward the south. Its westernmost point is about twenty feet further south than its easternmost point.

Both parties claim the disputed strip of land. The Hackmans rely upon a survey performed at their request by John Peacock in October 1981, just a few days before the plaintiffs (Maunds) filed this action seeking to establish the boundary line between the properties of these coterminous owners. The survey fixed the forty line, which the Hackmans contend is the boundary line, on the north side of the field road, placing the road upon land owned by the Hackmans.

The Maunds also claim that they hold the title to the strip of land. Mr. Maund and his immediate predecessor in title testified that the property line was marked by an old fence, part of which still existed. The strip claimed by the Maunds includes all of the road, which is, and has been for many years, used by Mr. Maund as a field road. It is the only access to his back (westernmost) forty acres.

The Maunds' original complaint sought a permanent injunction against the Hackmans prohibiting them from blocking the road, and an order declaring a recorded easement from the Maunds' predecessors to the Hackmans' predecessors to the field road, null and void. An amendment to the complaint requested the trial court to locate the boundary at the fence and establish permanent judicial landmarks.

Following an ore tenus hearing, this order was issued:

"The Court further finds that the plaintiff has been in open, notorious, continuous and exclusive possession of the land in question up to the fence since 1964 or for a period of more than ten years. The Court further finds that there was an intent on the part of the plaintiff to hold and enjoy the property up to the line (the fence), claimed by the plaintiff as the true dividing line. The Court further finds that the plaintiff exercised domain [dominion?] over the questioned property and used the questioned property as in its present state it was reasonably adapted to. Mardis v. Nichols, 393 So.2d 976 ( [Ala.] 1975); Limbaugh v. Richardson, 402 So.2d 957 ( [Ala.] 1975 [1981] ).

"Therefore, it is ORDERED, ADJUDGED AND DECREED as follows:

"1. That the boundary line between the plaintiff and the defendant is hereby established as the old fence line and now [sic] which has been in existence at least since 1964.

"2. That the line is more particularly described as follows, subject to an accurate survey of the line:

"(a) Begin where the 40 line or Peacock Survey line traverses the East line of the plaintiffs and defendants. (East being adjacent to the Wood property),

"(b) thence proceed in a westerly direction along the Peacock Survey line until it intersects the south side of the existing farm or field road,

"(c) thence proceed along the south side of the field road to a point parallel to [the] end of the old fence or fence row,

"(d) then proceed to the East end of the old fence or fence row,

"(e) then proceed westerly along the old fence or fence row to the west forty line.

"3. That a surveyor shall be appointed by the Court to establish permanent judicial landmarks according to this judgment. That the Court will appoint a surveyor agreed upon by the parties if the parties submit an agreed name within 15 days from the date of the decree. That the cost of the survey will be borne equally by each party.

"4. That the 20' easement in question in this case is declared null and void."

On appeal, the Hackmans challenge the findings that the fence marks the boundary line, that the Maunds obtained title to land north of the fence by adverse possession, and that the easement by grant is null and void.

The longstanding rule for reviewing boundary line cases was most recently stated by Mr. Justice Faulkner:

"When evidence is presented ore tenus and a trial court establishes a boundary between coterminous land owners, the decree is presumed correct and need only be supported by credible evidence in order to withstand appeal."

Hayes v. Cotter, 439 So.2d 102 at 104 (Ala.1983).

The witnesses called on behalf of the Maunds consistently testified that the fence on the south side of the field road marked the boundary line between the Maunds' west forty and the Hackmans' property. The witnesses agreed that the fence and road had never been moved from their present location. Mr. Willoford testified that he was the previous owner of the Maunds' property and had owned all the land north of the fence. He stated that he had intended to, and did, sell to the Maunds this very same tract of land. Mr. Willoford and Mr. Maund testified that, during their respective periods of ownership, they had regularly performed maintenance work upon the field road and used it to reach the pasture in the back forty. Several witnesses, including Mr. Maund and Mr. Willoford, testified that the Hackmans' predecessors had used the field...