Hess v. Rudder

• Decision Date: 09 February 1898
• Citation: 117 Ala. 525,23 So. 136
• Parties: HESS v. RUDDER.
• Court: Alabama Supreme Court

23 So. 136

117 Ala. 525

HESS v. RUDDER.

Supreme Court of Alabama

February 9, 1898

Appeal from circuit court, Jackson county; William L. Stephens Judge.

This was a statutory action of ejectment, brought by Sophronia E Rudder against James A. Hess, to recover a 50-acre tract of land. The facts of the case are set forth at length in the opinion. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave several written charges to the jury. The defendant separately excepted to the giving of each of these charges, and also separately excepted to the refusal to give, among other charges requested by him the following: "If the jury believe the evidence, they will find the issue in favor of the defendant." There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the giving of the charge requested by the plaintiff, and the refusal to give the several charges requested by the defendant. Reversed.

Martin Bouldin & Ashley, for appellant.

Tally & Proctor, for appellee.

BRICKELL C.J.

This was an action of ejectment instituted by appellee in February, 1897, to recover a 50-acre tract of land in Jackson county, and arose out of a dispute between the owners of coterminous estates as to the division line between them. The defendant disclaimed possession of all that part of the land sued for lying west of a designated line, and pleaded not guilty as to the land lying east of said line. The land in controversy, as thus limited by the pleadings, consists of a narrow strip containing four or five acres, and the chief defense relied on was the adverse possession of said strip by defendant for the statutory period. The real point of contention in this court is whether the possession of the defendant up to the line west of which he disclaimed possession was adverse in its character, the evidence in the record, even that of the plaintiff, showing beyond question that it had all those other elements which, when coupled with a hostile claim of right, vest a perfect title in the holder being actual, open, notorious, exclusive, and continuous for a period of more than 10 years. We have frequently had occasion to consider the question as to when the possession of a coterminous landowner becomes adverse to his neighbor, and to determine the rule applicable to the facts of particular cases. Possession, to be adverse, must be held under a claim of right, and there can be no adverse possession without an intention to claim title. Hence it is essential to the proper determination of the character of the possession to consider the intention with which it was taken and held. If one occupies land up to a certain fence, because he believes that to be the line of his land, but not having any intention to claim up to the fence, if it should be beyond the line, the intent to claim title does not exist coincident with the possession, and the possession up to the fence is not, therefore, adverse. Where, however, the coterminous owners agree upon a line as the dividing line, and occupy up to it, or when one of them builds a fence as the dividing line, and occupies and claims to it as such, with knowledge of such claim by the other, the claim is presumptively hostile, and the possession adverse. Brown v. Cockrell, 33 Ala. 38; Alexander v. Wheeler, 69 Ala. 340; Hoffman v. White, 90 ala. 354, 7 So. 816; Davis v. Caldwell, 107 Ala. 526, 18 So. 103. Although adverse possession is a fact the burden of proving which rests on him who asserts it, yet the circumstances under which the possession was taken and held not infrequently give rise to a prima facie presumption of its adverse character, and dispense with any further proof in this respect, in the absence of any rebutting evidence to the contrary. An agreement between coterminous owners establishing the line, or the building of a fence by one of them under the circumstances above stated, accompanied by occupancy up to the line or fence, gives rise to such presumption, because possession taken under such circumstances is inconsistent with the idea that it is held otherwise than under a claim of right. But these are not the only facts that create this presumption, even where the dispute is between coterminous owners. Any practical location by them of the division line, although there may be no express agreement, followed by occupancy up to the line located, may, under particular circumstances, have the same effect. If one buy a house pointed out to him, pay for it, and immediately go into possession under his deed, believing it to be the one described therein, such possession would be presumptively adverse, although the deed described a different house, and the law will so pronounce it if there is no rebutting testimony. So, if one while negotiating for a tract of land, and before the purchase thereof, have pointed out to him by the owner one of the boundaries separating it from the adjoining tract, and after purchasing it be put into possession and occupy up to the boundary line thus pointed out, believing it to be the true line, such occupancy would be presumed to be under a claim of right, the circumstances under which it was taken, in the absence of rebutting testimony, leaving no room for mere inference, not based on facts in evidence, that it was otherwise. We are of the opinion, after a careful consideration of the evidence in this case, that it shows without conflict that the possession of Hess, the appellant, was adverse during the whole period from 1883 up to the commencement of this action, and, since it was not lacking in any of the other essential elements, the defendant was entitled to the general charge in his favor. In the fall of 1892 appellee's husband, Rudder, was negotiating with one H. J. Cheney for the purchase of the 50-acre tract of land described in the complaint. At the same time appellant was negotiating with Cheney for the purchase of the adjoining tract. After Rudder had closed the...