Henderson v. Dunn

• Decision Date: 16 November 2001
• Citation: 871 So.2d 807
• Parties: Anna H. HENDERSON and Michael T. Henderson, individually and as executors of the estate of Donald R. Henderson, deceased v. Joe Allen DUNN and Trice Nelson.
• Court: Alabama Court of Civil Appeals

871 So.2d 807

Anna H. HENDERSON and Michael T. Henderson, individually and as executors of the estate of Donald R. Henderson, deceased v. Joe Allen DUNN and Trice Nelson.

2991235.

Court of Civil Appeals of Alabama.

November 16, 2001.

Rehearing Denied May 16, 2003.

Certiorari Denied August 15, 2003.

Guy V. Martin, Jr., of Martin, Rawson & Woosley, P.C., Birmingham, for appellants.

Bruce N. Wilson of Wilson & Drinkard, Grove Hill, for appellees.

Alabama Supreme Court 1021421.

MURDOCK, Judge.

This case involves a boundary-line dispute between landowners Donald Henderson¹ and Anna Henderson (husband and wife) and their son, Michael Henderson, on the one hand, and their neighbors, Joe Allen Dunn and his mother, Trice Nelson (hereinafter referred to collectively as "Dunn"), on the other hand.

Before the events giving rise to this case, one of Dunn's predecessors in title, Richard C. Jones, owned a large tract of land lying within Section 23, Township 13 North, Range 7 East, in Wilcox County. As to that portion of the Jones property at issue in this case, the southern boundary of Jones's property was coterminous with the southern boundary of the northeast quarter of the southeast quarter of Section 23. The Hendersons' property lay immediately to the south of the Jones property, within the southeast quarter of the southeast quarter of Section 23. The Jones and Henderson tracts were contiguous, being separated by the boundary line separating the northeast quarter of the southeast quarter of Section 23 from the southeast quarter of the southeast quarter of Section 23. Both the Jones and Henderson tracts had as their eastern boundary the Alabama River.

Also before the events at issue in this case, a dam constructed on the Alabama River created a lake (known as Lake Dannelly) that flooded portions of both the Jones and the Henderson properties. As a result, a peninsula was created that was bordered on the east by the Alabama River and on the north and west by a slough constituting part of Lake Dannelly. The peninsula, which generally runs north and south, was located partially in the northeast quarter of the southeast quarter of Section 23 and partially in the southeast quarter of the southeast quarter of Section 23. Thus, the northern portion of the peninsula was part of the Jones property, but was cut off from the remainder of the Jones property by the aforementioned slough. The southern portion of the peninsula was part of the Henderson property.

In 1980, William R. Goodman purchased the northern portion of the peninsula from Jones. In 1981, Goodman constructed on the peninsula a house for use as a weekend retreat. In 1985, Goodman conveyed his property to Richard Wright, who used the house as his primary residence. In 1990, Wright conveyed this property to Joe Allen Dunn and Trice Nelson, who also used the property as their primary residence.

The Hendersons obtained a survey in 1996 that revealed that Dunn's house had been built on the Hendersons' property. On October 2, 1998, the Hendersons sued to eject Dunn from their property, alleging that they had obtained title to the parcel of property by a deed recorded in the Probate Court of Wilcox County in 1956. In their complaint, the Hendersons offered to pay Dunn the fair market value of the house (less the rents and profits owed) if Dunn could demonstrate that the house had been erected on their land by mistake. The Hendersons further sought to enjoin Dunn from the use of a roadway through their land that he used to access a public road.

Dunn answered by averring that he and his predecessors in title had since 1981 maintained a residence on the property up to an old fence line located south of the house in question, and had maintained actual, continued, open, notorious, and hostile possession of the property up to that line. Dunn therefore asserted a counterclaim against the Hendersons, seeking title to the disputed property on the theory of adverse possession.

The trial court conducted a hearing at which ore tenus testimony was taken. On June 7, 2000, the trial court entered a judgment denying the Hendersons' claim for ejectment and vesting title to the disputed property in Dunn, based on the theory of adverse possession. On June 14, 2000, the Hendersons filed a motion requesting the trial court to rule on their claim seeking to enjoin Dunn from using a private roadway through their land, or, in the alternative, to certify its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. On July 7, 2000, the trial court entered a supplemental order denying the requested injunctive relief and granting Dunn an easement by necessity in the existing roadway. The Hendersons appealed to the Supreme Court. That court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

It is well established that when a trial court, after ore tenus proceedings, enters a judgment setting a boundary line between coterminous landowners, that judgment is presumed correct if it is supported by credible evidence. Valentine v. Ireland, 580 So.2d 581 (Ala.1991). Further, the presumption of correctness that attaches to the findings of fact made by the trial court when it hears ore tenus testimony is particularly strong in adversepossession cases. Lilly v. Palmer, 495 So.2d 522 (Ala.1986). In an adverse-possession case, the party asserting a claim to the property through adverse possession must show by clear and convincing evidence that there was "actual, hostile, open, notorious, exclusive, and continuous" possession for the statutory period. Grooms v. Mitchell, 426 So.2d 820, 822 (Ala.1983).

Alabama recognizes two types of adverse possession: (1) statutory adverse possession pursuant to § 6-5-200, Ala. Code 1975, and (2) adverse possession by prescription. Sparks v. Byrd, 562 So.2d 211 (Ala.1990). Specifically,

"`Adverse possession by prescription requires actual, exclusive, open, notorious and hostile possession under a claim of right for a period of twenty years. See, Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965). Statutory adverse possession requires the same elements, but the statute provides further that if the adverse possessor holds under color of title, has paid taxes for ten years, or derives his title by descent cast or devise from a possessor, he may acquire title in ten years, as opposed to the twenty years required for adverse possession by prescription. Code 1975, § 6-5-200. See, Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962).'"

562 So.2d at 214 (quoting Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 618 (Ala.1980) (emphasis omitted)). Further, our Supreme Court has consistently held that boundary disputes between coterminous landowners are hybrid types of adverse possession subject to a unique set of requirements and a period of adverse possession of only 10 years, even if none of the three additional elements described in § 6-5-200 is present. E.g., Sashinger v. Wynn, 571 So.2d 1065 (Ala.1990); Johnson v. Brewington, 435 So.2d 64 (Ala.1983).

On appeal, the Hendersons argue that the trial court erred in vesting title to the disputed property in Dunn on the theory of adverse possession because, they say, Dunn had purchased the disputed property in 1990 and this action was filed in 1998— two years short of a 10-year holding period. Specifically, the Hendersons claim that the trial court erred in allowing Dunn to "tack" his adverse possessory interest in the property to that of his predecessors in interest. Citing Smith v. Cherry, 684 So.2d 1322 (Ala.Civ.App.1996), as authority, the Hendersons claim that Alabama law prevents proof of a claim through adverse possession by "tacking" when the interest in the disputed property is not specifically conveyed by deed. We do not read Smith v. Cherry to stand for such a broad proposition. Rather, we construe that case to mean that, absent a clear conveyance of the disputed property in the deed, there must be some other evidence of intent to convey the disputed property. Further, this court in Smith v. Cherry, indulging the presumption in favor of the trial court, simply reviewed the record to determine whether credible evidence supported the trial court's judgment.

The "tacking" principle that the Hendersons have challenged was clarified by our Supreme Court in Watson v. Price, 356 So.2d 625 (Ala.1978). The Watson court stated:

"Because the application of the tacking principle is confusing under our present case law, we deem it appropriate to restate the principle and articulate the rationale for the rule. For the purpose of effecting title by adverse possession, where all the traditional elements are present, tacking of periods of possession by successive possessors is permitted against the coterminous owner seeking to defeat such title, unless there is a finding, supported by the evidence, that the claimant's predecessor in title did not intend to convey the disputed strip. We hold that this rule should apply even though the conveying instrument contains no legal description of the property in question, and irrespective of the period for which the property was possessed by the present claimant's predecessor in title. We perceive no logical or practical reason why the application of the privity of possession rule permitting tacking should be dependent upon whether the claimant's immediate grantor possessed the disputed property for more or less than the statutory period."

356 So.2d at 627.

In Mardis v. Nichols, 393 So.2d 976 (Ala.1981), Watson was cited with approval:

"The rule established in Watson is based upon the rationale that `[the] transfer of the possession alone is sufficient to create the privity for [the] purpose [of tacking of adverse possession periods], and written evidence of the transfer is not necessary when the property is held by the transferee under the claim of the first entryman.'"

393 So.2d at 979 (quoting Holt v. Adams, 121 Ala. 664, 25 So. 716 (1898)). We...