Hayes v. Cotter

• Decision Date: 30 September 1983
• Citation: 439 So.2d 102
• Parties: Adolph HAYES, et al. v. Ross R. COTTER, Jr., and Cotter Enterprises, Inc., a corp. 81-927.
• Court: Alabama Supreme Court

Page 102

439 So.2d 102

Adolph HAYES, et al. v. Ross R. COTTER, Jr., and Cotter Enterprises, Inc., a corp.

81-927.

Supreme Court of Alabama.

Sept. 30, 1983.

Winn S.L. Faulk, Dothan, for appellants.

Joe C. Cassady of Cassady, Fuller & Marsh, Enterprise, for appellees.

FAULKNER, Justice.

This is a land line dispute between coterminous land owners. The disputed segment was approximately sixty by nine hundred feet. The defendants, Ross Cotter and Cotter Enterprises, Inc., owned record title to the strip. The plaintiffs, Adolph Hayes and the Mt. Zion Baptist Church of Enterprise, Inc., claimed title by adverse possession. The trial court, sitting without a jury, found in favor of the defendants and the plaintiffs appealed.

The descriptions contained in the parties' deeds provided that their common boundary was the line separating the northeast quarter of the southwest quarter of section 12 from the northwest quarter of the same quarter section located in Coffee County, Alabama. The southern boundaries of both parcels were marked by Alabama highway 248. The plaintiffs' property lies due east of the defendants'.

The plaintiffs produced numerous witnesses to support their claim of adverse possession. Ray Sconiers, who was 78 years old at the time of the trial, testified that he moved onto the land now owned by the defendants when he was three. At that time his family's land included the parcel directly across the roadway from the Cotter parcel as well as the Cotter property itself. When he was thirteen or fourteen, Sconiers helped his father and Mr. Hayes build a fence along their land line south of the road. The fence ran in a southerly direction from the southern edge of the road. Although they did not build a fence along the border of the property in question north of the road, the Sconiers and Hayes families would plow up to a "turn row" which was, in Sconier's words, "on the same line" as the fence across the road.

Theodore Whitehurst farmed a portion of the Cotter parcel from 1933 until 1949. He testified that when he took possession of the land the owner, Mr. Sconiers, showed him the eastern boundary of the property and every year he plowed up to a turn row which was "straight across the road" from the fence south of the road. He also testified that the Hayes property was cultivated up to the same turn row during that period of time.

Earl Henderson purchased part of the Sconiers' place in 1937 or 1938. He owned what later became the northern half of the Cotter parcel. He testified that the portion of his eastern boundary below the woods was marked by a turn row in line with "that old line across the road."

The plaintiffs also produced witnesses who had farmed the Hayes property. Their testimony was in accord with that of the witnesses who had lived on the Cotter parcel. B.H. McDonald moved onto the Hayes place in 1923. He testified that the fence was in existence when he moved onto the land and that at the time of the trial it was still in the same location. According to McDonald there was a "piled high furrow" north of the road between the Hayes property and the Sconiers place, and that "you could look down that plowed furrow and compare it right straight with the fence south of the road."

Fate Terry, age 56 at the time of the trial, moved onto the Hayes property as a child. He cultivated the Hayes property, including the property where the Mt. Zion Baptist Church was later built, at the same time that Theodore Whitehurst was farming the Cotter parcel. Terry testified that the line where he and Whitehurst turned around when plowing their respective plots was "straight and level across" from the fence.

In 1945 Ervin and Arsolar Hayes conveyed a one-acre segment of land at the southwest corner of their property to the Mt. Zion Baptist Church, which was later incorporated as the Mt. Zion Baptist Church of Enterprise, Inc. Fate Terry continued to farm the remainder of the Hayes property, including that portion of the disputed strip to the north of the church property.

The Neal family replaced the Terrys as tenants on the Hayes place in the late 1950's. Richard Neal testified that he would plow to a "rise on the line" which Hayes had shown him. Neal described the location of the rise as "parallel with the fence across the road."

The Neals moved away and were replaced by Clem Henderson in 1962 or 1963. Henderson occupied the Hayes property up to and including the time of the trial. He testified that he had planted a crop each year as far west as a turn row which "lined up with" the fence.

During the early 1970's, a subdivision was built on the property across the road from the Cotter parcel. When platting the subdivision the surveyor used the fence line as the eastern boundary of the subdivision because it was accepted by the coterminous land owners as the property line.

When Cotter bought the parcel north of the road to develop as a subdivision, he hired Veston Bush to survey the property. Bush testified that the south 190 feet of the strip in dispute (the portion adjacent to, and claimed by, the church) was in "high vegetation" when he first inspected the property. The next 310 feet had been plowed and the northernmost portion, about 400 feet deep, was wooded. Bush prepared a survey and made a drawing of the dimensions of the property on a...