Kubiszyn v. Bradley
| Decision Date | 27 June 1974 |
| Citation | 298 So.2d 9,292 Ala. 570 |
| Parties | Jack J. KUBISZYN and Lucy Stallworth Kubiszyn v. J. A. BRADLEY and Ruby Mae Bradley. SC 621. |
| Court | Alabama Supreme Court |
Zeanah, Donald, Lee & Williams, Tuscaloosa, for appellants.
Phelps & Owens, Tuscaloosa, for appellees.
On this appeal we are presented with a boundary line dispute between coterminous landowners. The following surveyor's drawing represents the location of the respective properties of the parties. That part of the disputed area east of the county road (Bradley Road) is shaded.
The appellants (complainants), Jack and Lucy Kubiszyn, filed a bill in equity, pursuant to Tit. 47, § 2, Code of Alabama 1940 (Recompiled 1958), against the respondents (appellees), J.A. and Ruby Mae Bradley, to determine the boundary line between their properties. The Kubiszyns allege that the quarter-section line is the true boundary line but that the Bradleys contend the true line to be the fence between the properties. By cross bill the Bradleys claim title to all land on their side of the fence by adverse possession for a period of 20 years next preceding the filing of the complaint.
The Circuit Court of Tuscaloosa County, sitting without a jury, found that the Bradleys have been in adverse possession of the property north of the fence line for a period of more than 20 years and rendered judgment in favor of the Bradleys by establishing the true boundary between the parties to be the fence line. This appeal followed. We affirm, in part, and reverse and remand, in part, with directions.
The final decree of the trial court procided, inter alia:
'The Court finds that the Respondents and their predecessors in title for more than twenty (20) years prior to the filing of the Bill of Complaint in this cause have been in possession of the property on the North side of the aforesaid established fence line and have cultivated, maintained as pasture and cut timber up to the aforesaid fence line and that their possession has been often notorious, hostile and under claim of right and that Respondents . . . have acquired by adverse possession all property lying north of the aforesaid fence line.'
As stated in the trial court's decree, and as shown by the surveyor's drawing, a county road, Bradley Road, crosses the disputed boundary line at an oblique angle.
The substance of apellant's nineteen assignments of error is that the evidence was insufficient to support the trial court's decree, particularly with regard to the boundary line lying west of bradley Road. We will give separate consideration to the evidence as it applies to the fixing of the boundary line east of Bradley Road and as it applies to the boundary line west of the road.
The Bradleys own the record title to:
'The Southwest quarter of the Northeast quarter (SW 1/4 NE 1/4), Section 16, Township 22, South, Range 9 West.'
This tract of land has been in Mr. Bradley's family since about 1870.
The Kubiszyns became the owners of the record title to the following described tract in 1970:
'The North three-eights (3/8) of the North one-half (N 1/2) of the southeast quarter (SE 1/4) of Section 16, Township 22 South, Range 9 West, containing 30 acres, more or less.'
This property came to them by mesne conveyances from the Smith family.
At the time of the death of the last of the Smiths in 1966, it appears the Smith and Bradley families had been coterminous landowners for nearly eighty years. The evidence at trial established with little question that the present fence east of the road has been in existence for over 60 years, and that Mr. Bradley and his father had cultivated to the fence, cut timber to the fence line, and used the disputed strip as pasture. There was also testimony that there was a distinct change in use of the land at the fence line, and that the Kubiszyns' predecessors in title had cultivated only to their side of the fence line.
In boundary line cases, this Court has held, viz.:
'If a coterminous landowner holds actual possession of a disputed strip under a claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he thereby acquires title up to that line * * *.' Sylvest v. Stowers, 276 Ala. 695, 697, 166 So.2d 423, 426 (1964).
'* * * the claimant need show only dominion over the land claiming it adversely as to the whole world for the required time.' Williams v. Davis, 280 Ala. 631, 633, 197 So.2d 285, 287 (1967). See also Cambron v. Kirkland, 287 Ala. 531, 253 So.2d 180 (1971).
Appellants contend that these necessary elements have not been established by clear and convincing evidence in that the Bradleys never made verbal claims to, or subjectively intended to take, their neighbors land; and, therefore, we must presume that the Bradleys' possession was not adverse but lawful. We cannot agree. Although past statements of intention by the adverse claimant might be entitled to consideration, primarily, it is the acts of the adverse claimant to which the court must look to determine objectively whether there is a claim of right to the disputed area openly and exclusively for ten years. Smith v. Brown, 282 Ala. 528, 213 So.2d 374 (1968); Smith v. Cook, 220 Ala. 338, 124 So. 898 (1929); Williams v. Davis, supra.
The rule of our cases is to effect that if a landowner holds actual possession of his coterminous neighbor's land for the required period although he believes he is holding only his own property, what he might have claimed had he known the location of the true line is immaterial. Smith v. Brown,supra; Smith v. Cook, supra; Barnett v. Millis, 286 Ala. 681, 246 So.2d 78 (1971). The question is whether one's acts speak clearly of an intent to possess his coterminous landowner's lands as his own.
The erection and maintenance of a fence is one of the clearest symbols of possession. Graham v. Hawkins, 281 Ala. 288, 202 So.2d 74 (1967). Cutting of timber, although it may not, standing alone be sufficient, is one factor to consider. Cf. Lay v. Phillips, 276 Ala. 273, 161 So.2d 477 (1964); Smith v. Brown, supra. Cultivation is an act of possession or ownership, although not conclusive in all cases. Cambron v. Kirkland, 287 Ala. 531, 253 So.2d 180 (1971). In sum, to constitute an actual possession of land, the question is whether the adverse claimant has put the land to such use as it is reasonably adapted. James v. Mizell, 289 Ala. 84, 265 So.2d 866 (1972); Alabama State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174 (1910). Although possession must be continuous, it is not necessary that each type act be continuous. It would be unreasonable to require a landowner to use continuously all the land enclosed within his fences. James v. Mizell, supra.
In applying these principles to this case, our oft-stated rule of review is that when the trial court has heard the evidence orally, its decree is favored with a presumption of correctness, which will not be disturbed on appeal unless plainly erroneous or manifestly unjust. Morgan v. Larde, 282 Ala. 426, 212 So.2d 594 (1968); Butts v. Lancaster, 279 Ala. 589, 188 So.2d 548 (1966). When so viewed, we think there is ample evidence which would establish that the Bradleys and their predecessors in title have held adverse possession of the disputed property east of the road and up to the fence line for a period of considerably more than twenty years.
However, appellants contend we must look beyond this period in that from 1914 to 1966 life tenants were in possession of the appellants' property. They insist that neither the ten-year period for adverse possession nor the prescriptive period of twenty years will run against a remainderman until the expiration of the requisite period following the termination of the preceding life estate because a remainderman has no right of action against the adverse claimant. Appellees contend that the deed to the purported life tenants did not create life estates but mere personal rights in the grantees.
Because of the view we have taken of the evidence in this case, it is not necessary that we decide whether the deed by which the purported life tenants entered the property created valid life estates in them. Assuming Arguendo that true life tenancies were created in 1914 and ran until 1966, the Bradleys had the burden of proving that the period for adverse possession or prescription had begun to run prior to 1914 in order to cut off the rights of a remainderman and his successors.
In Kidd v. Browne, 200 Ala. 299, 302, 303, 76 So. 65, 68, 69 (1917), this Court set forth the applicable principles as applied to both the statute of limitations and prescription, viz.:
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