Hoffman v. White

• Decision Date: 20 May 1890
• Citation: 90 Ala. 354,7 So. 816
• Parties: HOFFMAN v. WHITE.
• Court: Alabama Supreme Court

7 So. 816

90 Ala. 354

HOFFMAN v. WHITE.

Supreme Court of Alabama

May 20, 1890

Appeal from city court of Decatur; W. H. SIMPSON, Judge.

Wert & Speake, for appellant.

E W. Godbey, for appellee.

McCLELLAN J.

We are satisfied from the evidence in this record that about the year 1869 a fence was erected on what was supposed by the then owners of lots 23 and 32, respectively, to be the divisional line between said lots. We are further satisfied that from that time to the present the owners of lot 32 have been in the open, notorious, actual, and continuous possession thereof, as defined in part by said fence, which has been constantly maintained on the line of its original location. We are also convinced that this possession on the part of the defendant, and those under whom he claims, has always been under a claim of ownership of the whole of lot 32 up to the said partition fence, and that the rightfulness of such possession was never drawn in question until shortly before the institution of this suit by the owners of lot 23 or any other person. It may be conceded that the fence is not, and has never been, on the true line between the lots but that, on the contrary, it was by mistake placed so as to inclose with lot 32 a strip seven feet in width off the west side of lot 23. Yet, if the erroneous line was agreed upon by the then proprietors, as we think the evidence shows, under the belief that it was the correct line, and the owners of lot 32 entered on, and took possession of, lot 32 to such conventional line, and held under a claim of right, their possession is adverse in its character to the true owner, and if continued for 10 years ripens into a perfect title against all the world. Alexander v. Wheeler, 69 Ala. 332.

It is insisted, however, that the line between these lots was not established by agreement of the parties. We do not concur in this view of the evidence, but the position may be admitted and the element of contract in the location of the fence be entirely eliminated. The fact would still remain that the owner of lot 32 intended to put the fence on the true line believed he had done so, and that he and his successors for more than 10 years held up the fence under a claim of ownership hostile and adverse in its character. We do not doubt but that such possession, though not justified by an understanding as to the location of the fence, and originating in a mistake as to the true line, would, if open, notorious, actual, and continuous for the statutory period, vest absolute title in the holder. Abbott v. Abbott, 51 Me. 584; McNamara v. Seaton, 82 Ill. 501. So that, whether the division line was established by agreement,...