Johnston v. White-Spunner, WHITE-SPUNNER
| Decision Date | 04 February 1977 |
| Docket Number | WHITE-SPUNNER |
| Citation | 342 So.2d 754 |
| Parties | Robert T. JOHNSTON et al. v. Blacksheret al. SC 1999. |
| Court | Alabama Supreme Court |
Augusta E. Wilson and William Roberts Wilson, Mobile, for appellants.
Ross Diamond, Jr., Diamond, Lattoff & Gardner, Mobile, for appellees.
In an action to resolve a boundary line dispute between owners of contiguous lots in a subdivision of the N 1/2 of SE 1/4, Sec. 29, Twp. 4, S, Rg. 2 W, Mobile County, Alabama, the trial court found there was excess acreage in Section 29 but only apportioned an aliquot portion To the lots in the subdivision owned by the litigants, and other lot owners in that subdivision who were Not parties to the action. Although there are other issues raised by this appeal, this is the controlling one. The trial court was in error, therefore we reverse and remand.
Plaintiffs, Blacksher White-Spunner, J. F. Pate, Jr., and Ross M. Diamond, Jr., filed a statutory non-jury action under Tit. 47, § 3 of the Code to establish and define a boundary line between their Blocks (lots) 3 and 14 of Shoub's Second Addition to Mobile Heights and Block (lot) 2 owned by defendants Robert T. and Verlene Johnston.
The complaint alleged existence of a dispute over the correct location of the boundary between the lots of plaintiffs and that of defendants; that a survey made by one Rester, 18 June 1974, revised 29 May 1975, showed the true boundary between the lots; that an existing roadway was 75 feet off its center line, and the Johnstons were encroaching upon plaintiffs' property.
The relief requested was: establishment and definition of the boundary line according to the Rester survey; removal of a dirt driveway and signs on property claimed by plaintiffs and to order the Johnstons to cease, and desist from, using any of the property claimed by White-Spunner, et al.
Answer of the Johnstons denied the boundary was as located by the Rester survey and claimed portions of lots 3 and 14 by adverse possession.
The case was tried without a jury, after which, in an amended decree, the trial court held: the true boundary line is shown by the Rester survey of 18 June 1974, revised 29 May 1975; the Johnstons' driveway encroaches upon Blocks (lots) 2 (sic) and 14 of White-Spunner, et al; there is excess acreage in Section 29, properly allocated as set out in plaintiffs' exhibits 5 and 6 attached to, and incorporated in, the decree by reference; the true and correct location of Satsuma Avenue (Johnston Lane) is as set out in the Rester survey; that Rester should place, in conformity with his revised survey, permanent 'judicial landmarks' at points marking the NE corner of Block (lot) 3, NW corner of Block (lot) 2, SE corner of Block (lot) 3, SW corner of Block (lot) 2 and the SE corner of Block (lot) 14, and the Johnstons should cease and desist from using the White-Spunner, et al., property in any fashion.
The Johnstons appeal from the amended final decree, urging error: in denial of their claim as to location of the boundary; relocation of Johnston Lane (Satsuma Ave.); in denial of their claim to portions of Blocks (lots) 3 and 14 by adverse possession, and improper apportionment of excess acreage and absence of indispensable parties.
The parcels of land involved in this dispute are part of Shoub's Second Addition to Mobile Heights, an eighty acre tract consisting of the N 1/2 of SE 1/4 of Sec. 29, Twp. 4 S, Rg. 2 W, Mobile County. The subdivision is comprised of 16 Blocks (lots) of approximately 5 acres each. Blacksher White-Spunner, J. F. Pate, Jr., and Ross Diamond, Jr., own Blocks (lots) 3 and 14. Robert and Verlene Johnston own Block (lot) 2. Eight lots each are located on either side of Johnston Lane, previously known as Satsuma Avenue.
The plat of Shoub's Second Addition to Mobile Heights, recorded in the Probate Office of Mobile County in 1914, at page 93, Deed Book 156, shows the subdivision, as dedicated at that time, with lot dimensions of 330 feet by 640 feet and Satsuma Avenue (now Johnston Lane) to be a street 40 feet in width. It appears as follows:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The Rester survey allocates a portion of the excess acreage in Section 29 to the subdivision and enlarges the lots from a minimum width of 333.16 feet to a maximum of 333.56 feet; from a minimum length of 651.43 feet to a maximum of 659.44 feet. In contrast to Shoub's Second Addition plat, those lots and the street in the subdivision, by Rester's reallocation, appear as shown here:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The trial court made a part of its decree a sketch (not to scale) of the prorated enlargement of Section 29:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
It is apparent, from the above, the size of the parcels of each owner of every parcel in each quarter-quarter of the section has been affected to some extent.
As noted, the Rester survey was made a part of the amended final decree by reference. Also, in the decree, the trial court made an express declaration that it was not intended to adjudicate the rights of persons not parties to the proceedings. By adopting the Rester survey and the prorated enlargement of Section 29 the decree affects the lands in that Section: by apportionment and determining the correct location of Johnston Lane. Thus it, in fact, affects lands and rights of persons not parties to the proceeding.
The subdivision, embracing the lots of the parties to this action, consists of 16 lots; they contain excess acreage which, by the decree, was apportioned on a prorated basis to each of them. This results in an increase in the width and length of each (333.16 min. to 333.56 max. and 651.43 min. to 659.44 max.; width and length respectively). It is obvious that in order to achieve this result, the established boundary lines of every lot must be moved. If excess acreage is to be properly apportioned it must be allocated among all the lots in the subdivision. Adams v. Wilson, 137 Ala. 632, 34 So. 831 (1903). The trial court erred, however, when it made the apportionment without having jurisdiction over the owners of, or those having an interest in, the remaining lots in the subdivision; assuming, without deciding, that apportionment was proper in this case. This is in accord with the generally accepted rule. Nitterauer v. Pulley, 401 Ill. 494, 82 N.E.2d 643 (1948); 11 C.J.S. Boundaries § 124, p. 739.
Express declaration in the decree of no intention to adjudicate the rights of those not parties to the action will not cure this error. The Rule 54, ARCP, provision for final judgment as to less than all the parties, or claims, in certain actions is not here applicable. The rights of less than all having an interest in each lot cannot be adjudicated because to do so involves matters In rem. In an action where the final decree affects title, ownership, or interest in real property each possessor of title, ownership or interest must be made a party to the action. Davis v. Burnette, 11 ABR 541 (December 30, 1976); Dews v. Peterson, 283 Ala. 650, 219 So.2d 903 (1969); Snodgrass v. Snodgrass, 212 Ala. 74, 101 So. 837 (1924); Rule 19, ARCP....
To continue reading
Request your trial
-
Miller v. City of Birmingham
...... is a jurisdictional defect....’). See also J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala. 1981) ; Johnston v. White–Spunner, 342 So.2d 754, 759 (Ala. 1977) ; and Burnett v. Munoz, 853 So.2d 963 (Ala. Civ. App. 2002). But see Holland v. City of Alabaster, 566 So.2d 224 (Ala. 19......
-
Campbell v. Taylor
...... is a jurisdictional defect....”). See also J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981) ; Johnston v. White–Spunner, 342 So.2d 754, 759 (Ala.1977) ; and Burnett v. Munoz, 853 So.2d 963 (Ala.Civ.App.2002). But see Holland v. City of Alabaster, 566 So.2d 224 (Ala.1990) (a......
-
Darby v. Presley
...the real property must be joined.’ " Byrd Cos. v. Smith, 591 So. 2d 844, 846 (Ala. 1991) (citations omitted). See alsoJohnston v. White-Spunner, 342 So. 2d 754 (Ala. 1977) (when a trial court is asked to determine property rights of property owners not before the court, the absent property ......
-
Commonwealth Assisted Living, LLC v. Vestavia Hills, Ltd.
...or interest in real property each possessor of title, ownership or interest must be made part of the action." Johnston v. White-Spunner , 342 So. 2d 754, 759 (Ala. 1977).14 "[M]ost courts look to 28 U.S.C. § 1412 for authority to determine the outcome of a motion to transfer venue of a caus......