Home Loan Co. v. Calhoun

• Decision Date: 28 May 1925
• Docket Number: 6 Div. 428
• Parties: HOME LOAN CO. et al. v. CALHOUN et al.
• Court: Alabama Supreme Court

104 So. 797

213 Ala. 408

HOME LOAN CO. et al. v. CALHOUN et al.

6 Div. 428

Supreme Court of Alabama

May 28, 1925

Rehearing Denied June 25, 1925

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by T. Henry Calhoun and Leana Calhoun against Steve Hampton, Pearl Hampton, and the Home Loan Company. From a decree for complainants, respondents appeal. Reversed and remanded.

Hayden & Hayden and Hugh A. Locke, all of Birmingham, for appellants.

J.S Kennedy, of Birmingham, for appellees.

THOMAS J.

The bill was to settle a disputed boundary line between city lots, and resulted in a decree for complainants.

The law of such case is well established in this jurisdiction. Turner v. De Priest, 205 Ala. 313, 87 So. 370. The rule of adverse possession is that--

"Where adjoining landowners claimed and held the land to a line which they believed to be the true line, not intending to hold beyond the true line such claim and possession of the one is not adverse to the rights of the other if the line was not in fact the true line; however if they intended to hold to that line regardless of whether or not it was the true line such holding was adverse." Gibson v Gaines, 198 Ala. 583, 73 So. 929; Smith v. Bachus, 195 Ala. 8, 70 So. 261; Hess v. Rudder, 117 Ala. 525, 23 So. 136, 67 Am.St.Rep. 182.

It follows that, where adjacent owners agree upon or fix their boundary lines, or "where at the request of adjacent landowners, the county surveyor surveyed and marked on the ground a boundary line between said landowners which was treated by the owner as the true line for ten years or more, the parties acquired title by adverse possession to the line as established, and an owner could not thereafter recover on establishing a different line by a new survey." Williams v. Bedsole, 174 Ala. 125, 56 So. 567; Gunn v. Parsons (Ala.Sup.) 104 So. 390.

The questions of fact were not heard orally by the trial judge. Hodge v. Joy, 207 Ala. 198, 92 So. 171; Andrews v. Grey, 199 Ala. 152, 74 So. 62.

When due consideration is given the map offered by complainants and the evidence of respondents of adverse possession of the lot within the enclosure, and upon which a part of respondents' improvements are located, the decree is held to be erroneous. Such is the result, even though the lines as staked out and agreed upon between Hampton and the selling agent for the Jefferson Savings Bank or the owners of lots 99 and 101 are erroneous. The sale and possession of said contiguous lots were...