Hagan v. Crowley

• Decision Date: 15 November 1956
• Docket Number: 1 Div. 584
• Citation: 90 So.2d 760,265 Ala. 291
• Parties: Eugene W. HAGAN et al. v. John J. CROWLEY, as Executor, et al.
• Court: Alabama Supreme Court

Page 760

90 So.2d 760

265 Ala. 291

Eugene W. HAGAN et al. v. John J. CROWLEY, as Executor, et al.

1 Div. 584.

Supreme Court of Alabama.

Nov. 15, 1956.

Gordon & Jansen, Mobile, for appellants.

Mell A. Frazer and Caffey, Gallalee & Caffey, Mobile, for appellees.

GOODWYN, Justice.

This is a statutory ejectment suit brought by appellees against appellants to recover possession of a tract of land bordering on what is now known as Robinson's Bayou, near Dog River in Mobile County. The case was tried without the intervention of a jury, the evidence being taken orally before the trial judge. From a judgment in favor of plaintiffs, the defendants prosecute this appeal.

It is insisted by appellants that judgment should have been in their favor because, first, appellant Hagan has acquired title to the property by adverse possession, and second, title to the property is outstanding in a third party. The other appellant-defendant, Rachel Hayes, is Hagan's tenant in actual occupancy of the property.

In the final analysis, the validity of appellants' defenses turns upon questions of fact. We have carefully examined the evidence which, on the points in issue, is conflicting. From a consideration of this conflicting evidence the trial court resolved the factual issues in favor of the plaintiffs. When, as here, testimony is taken orally before the trial court, the established rule is that a finding by such court on the facts has the effect of a jury's verdict and will not be disturbed on appeal unless plainly and palpably wrong or against the great preponderance of the evidence. Spruiell v. Stanford, 258 Ala. 212, 216, 61 So.2d 758, and cases there cited. In the light of this rule, we see no basis for disturbing the trial court's decision.

Adverse Possession

It appears to be established by the evidence, and the parties apparently concede, that title to the disputed tract was vested in one Daniel Kelly in 1859. Plaintiffs made out their prima facie case by showing a direct chain of title from Kelly to them. There is no question about the property in dispute being included in the instruments in the chain of title.

Briefly, the evidence as to adverse possession is as follows: Defendant Hagan received a deed from Eleanor S. Burgett, a widow, dated October 1, 1936, which he claims conveys to him the disputed property together with an additional tract. This deed was not recorded until 1942, some six years before the filing, in 1948, of the ejectment suit. Hagan listed the property for taxation and paid the taxes for the years 1937 through 1948. In 1946 he built two small houses on the tract, one of which was occupied by defendant Rachel Hayes with Hagan's permission. He testified that he did not rent to the people on the place, that 'they were just free to stay there, so they could take care of the boats, and we would go down there on Sunday or something like that fishing, we would have a boat.' Prior to 1946 there was no one living on the property and it was not put to any use except as an occasional fishing and picnicking spot. There is some evidence that people kept boats anchored on the water front, with Hagan's permission, but it is not clear how long this had been done, nor just how it had been so used. Hagan testified that he had lived in Mobile and had been regularly engaged in business there for the past 20 years.

Code 1940, Tit. 7, § 828, provides in part as follows:

'Adverse possession cannot confer or defeat title to land unless the party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded in the office of the judge of probate of the county in which the land lies for ten years before the commencement of the action; or unless he and those through whom he claims shall have annually listed the land for taxation in the proper county for ten years prior to the commencement of the action, if the land is subject to taxation; or, unless he derives title by descent cast, or devise from a predecessor in the title who was in possession of the land. * * *'

There appears to be no question that Hagan has fulfilled the requirements of § 828 by listing the property for taxation for ten years prior to the commencement of this action. However, such listing for taxation is not alone sufficient to give him title. It must also be shown that he has been in actual adverse possession of the land during the ten years he listed the property for taxation. It seems to us that what was said in Spradling v. May, 259 Ala. 10, 14-15, 65 So.2d 494, 498, is of controlling influence here, viz.:

'Where one claims title to land through an unbroken chain of record title against another who relies upon adverse possession under color of title, the rule is well established. A very strict burden to establish his title rests upon the one claiming by adverse possession.

'The law places such a high dignity upon a regular documentary title and requires such strict formalities to evidence it that a necessary concomitant is that in order to work a divesture of that title by adverse possession, all the essential elements must be proven by the stated measure of proof, and that proof must show that there has been an actual occupancy, clear, definite, positive, notorious, continuous, adverse and exclusive for the requisite period under claim of right of the definite tract involved.

'Following are some of the authorities: Walthall v. Yohn, 252 Ala. 262, 40 So.2d 705; Turnipseed v. Moseley, 248 Ala. 340, 27 So.2d 483, 170 A.L.R. 882; Barbaree v. Flowers, 239 Ala. 510, 196 So. 111; Murphy v. Leatherwood, 221 Ala. 61, 127 So. 843; McDaniel v. Sloss-Sheffield Steel & Iron Co., 152 Ala. 414, 44 So. 705; Chastang v. Chastang, 141 Ala. 451, 37 So. 799.

'It is also the established law that rare and widely separated acts, regardless of how clearly they might have indicated a purpose to claim title, do not show a possession in wild land sufficient for the purpose of acquiring title by adverse possession. The possession must be continuous. Tensaw Land & Timber Co. v. Rivers, 244 Ala. 657, 15 So.2d 411. Also, occasional acts of entry upon land and cutting timber or other...