Jacks v. Taylor, No. 2060455 (Ala. Civ. App. 11/2/2007)

Decision Date02 November 2007
Docket NumberNo. 2060455.,2060455.
PartiesDebbie Jacks, Perry Jacks, and Bobbie Smitherman Adams v. Edwin Taylor.
CourtAlabama Court of Civil Appeals

Appeal from Chilton Circuit Court (CV-05-158).

THOMAS, Judge.

This is a boundary-line dispute between coterminous landowners. In June 2005, Edwin Taylor filed a complaint alleging that, for more than 20 years, the boundary line between his property and the property owned by Debbie Jacks and Perry Jacks had been marked by a fence; that he and the Jackses' predecessors in title had agreed that the fence was the boundary line but that a dispute had recently arisen between the parties as to the location of the boundary line; and that the Jackses had trespassed upon his property and had begun erecting another fence. Taylor sought a judicial determination of the boundary line and a temporary restraining order ("TRO") to prevent the Jackses from trespassing on or otherwise interfering with his property.

The Jackses answered, denying that the parties or their predecessors in title had ever acknowledged a fence as the boundary line between their properties and alleging that the boundary line was the section line between Section 4 in Township 21 and Section 33 in Township 22. See Appendix attached to this opinion. The Jackses also alleged that Taylor had failed to name an indispensable party, namely Bobbie Smitherman Adams, who, they said, also shared a boundary with Taylor along the section line.

Taylor amended his complaint to name Adams as an additional defendant. Following a bench trial, the trial court entered a judgment finding that "the boundary line between [Taylor's] property and [the Jackses' and Adams's] property is the old lane fence, described by [the Jackses and Adams] and their witnesses as the inside fence, apparently still remaining this day." The Jackses and Adams appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Factual Background

In 1957, Taylor purchased property described as "[t]he south half of the south half of the southwest quarter, Section 33, Township 22, Range 15, containing 40 acres, more or less." Taylor's property is bordered on the south by property owned by the Jackses and Adams. The northern boundaries of both the Jackses' property and Adams's property are described by reference to the section line dividing Section 4 and Section 33.

The Jackses' May 21, 1999, deed describes their property as:

"A parcel of land containing 6.30 acres, more or less, being more particularly described as follows: Begin at the NE corner of Section 14, Township 21 North, Range 15 East, Chilton County, Alabama and run thence W along the N line of Section 4 and a fence line a distance of 4,0135.5 feet to the point of beginning of the parcel herein described; from the point of beginning thus established[1] continue Westerly along a fence line a distance of 411 feet; from said point run thence S a distance of 640 feet to a point; from said point run thence E a distance of 411 feet, more or less, to a point; from said point run thence N 640 feet to the point of beginning. Also an easement for right of way for ingress and egress and installation of necessary utilities, said easement being described as follows: A strip of land of uniform width and 15 feet wide along either side of the following described line, said line being the centerline of said easement:

"Begin at the NE corner of Section 4, Township 21 North, Range 15 East, and run thence W a distance of 4,013.5 feet to a point; from said point continue W a distance of 411 feet, more or less, to a point; from said point run thence S 1280 feet to a point on the N margin of a dirt road; from said point run thence E along the N margin of said dirt road a distance of 15 feet to the point of beginning of the centerline of said easement; from said point run thence N a distance of 640 feet, more or less, to the S line of that parcel above described, said easement being 30 feet wide and 15 feet on either side of the aforesaid described property and connecting the 6.3 acre parcel above described with the N margin of the County dirt road, i.e., County Road 488."

An Adams deed dated July 11, 1975, describes the northern boundary of one parcel of her property as "along the North line of Section 4, a distance of 194 feet ... [s]aid lot or parcel of land lying and being in the Northwest Fourth, Section 4, Township 21, Range 15, Chilton County, Alabama, and containing two-thirds of an acre." An Adams deed dated July 22, 1975, describes another parcel of her property as "[a] lot or parcel of land lying and being situated in the NW 1/4 of the NW 1/4, Section 4, Township 21 North, Range 15 East, Chilton County, Alabama, containing 13 acres, more or less," with the northern boundary being described as follows:

"From the Northeast corner of the NW 1/4 of the NW 1/4, of Section 4, Township 21 North, Range 15 East, run West on and along the North boundary line of said Quarter-Quarter 411 feet to a point, which said point is the point of beginning of the property herein described. From said point as the point of beginning, continue to run West on and along the North boundary of said Quarter-Quarter 897.5 feet to a point on the East right of way line of a paved county road ...."

Adams's July 22, 1975, deed includes the following additional provision, not found in any of the other deeds at issue in this case.

"It is understood and agreed by the parties hereto that the fences presently located on the North and East line of the property described herein are not property lines but are fences mutually agreed on as pasture lines only."

Taylor testified that when he acquired his property in 1957, there was a fence along the southern edge of the property. He stated that, in the 50 years that he had owned the property, he had repaired or rebuilt the fence several times but he had never changed the location of the fence. Throughout the record, the parties referred to that fence as "the inside fence."

Taylor acknowledged that at some time in the past there had existed another fence, which the Jackses and Adams and their witnesses referred to "the outside fence," running parallel to and just north of the inside fence. The evidence was undisputed that, although the outside fence no longer existed at the time of trial on May 22, 2006, remnants of the outside fence remained, specifically fence wiring that was embedded in a large red oak tree on the northeast corner of the Jackses' property. All the parties agreed that the area between the inside fence and the outside fence had been used by Taylor and by the Maddoxes — the Jackses' and Adams's predecessors in title — as a "cattle lane," a way to move cattle between the pastures on various parcels owned by Taylor and by the Maddoxes. In addition, Taylor testified that he had used the area to grow crops, including peaches, watermelon, and wheat, and hay for his cattle. Taylor identified the inside or southernmost fence as the boundary between his property and the property of the Jackses and Adams. He acknowledged that his property was in Section 33 and that he did not own any property in Section 4.

Taylor testified that in May or June 2005 he saw a man working on what he considered to be his side of the fence. Taylor identified Darryl Bice, the son of Debbie Jacks and the great-nephew of Bobbie Adams, as the man he had seen on his property. Bice informed Taylor that he had purchased a parcel of property from Adams, that he had had the property surveyed, and that he was staking out the property for a fence. When Bice began building the fence, Taylor filed the present lawsuit.

Neil Taylor, Edwin Taylor's 55-year-old son, testified that the inside fence had marked the boundary between his father's property and the property to the south for as long as he could remember. He said that in May or June 2005 he found a steel stake that had been driven into the ground on his father's side of the property and asked Bice about it. Bice stated that the surveyor he had hired had placed the stake in the ground.

Debbie Jacks identified the deed to her property; she stated that she had received the property in 1999 from her brother, who had received the property from their father, Billy Maddox. Jacks, who was 50 years old at the time of trial, testified that she had grown up on the property, which had been in her family since 1918. She said that the fence lines on the property — both of the existing inside fence and of the formerly existing outside fence — "were not the land line." She testified, "My grandfather on down has always told us that the fence lines — and I believe we have it on one of the deeds — that the fence line is not the land line." She described a large red oak tree that, she said, marked the section corner. Jacks stated that she had never been aware that Taylor was claiming that he owned the property up to the inside fence until her son, Darryl Bice, had begun to erect a fence after having commissioned a survey. She said that, while her son was putting up the fence, Taylor pushed his truck against the fence and asked her son what he was doing. Jacks replied, "We had [the property] surveyed and we [are] putting up a fence ... six inches this side of what [the surveyor] said was the line." Taylor responded by pointing to the inside fence and stating that there "was already a fence up and it was the one over there." Jacks replied that the inside fence "was not the land line." According to Jacks, Taylor said that "it didn't matter; that fence was standing." Jacks testified that on three occasions between 1995 and 1997 Taylor or someone acting on his behalf and at his direction had cut trees in the disputed area. She said that on each occasion a member of her family had instructed Taylor to stop the cutting and that Taylor had complied with those instructions.

Debbie Jacks's aunt, 72-year-old Bobbie Adams,...

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