Lay v. Phillips

• Decision Date: 20 February 1964
• Docket Number: 6 Div. 913
• Citation: 276 Ala. 273,161 So.2d 477
• Court: Alabama Supreme Court
• Parties: J. M. LAY v. Maicolm PHILLIPS et al.

Page 477

161 So.2d 477

276 Ala. 273

J. M. LAY v. Maicolm PHILLIPS et al.

6 Div. 913.

Supreme Court of Alabama.

Feb. 20, 1964.

Bland & Bland, Cullman, for appellant.

Thos. A. Smith, Jr., Cullman, for appellees.

HARWOOD, Justice.

This is a boundary line dispute between two coterminous owners.

J. M. Lay filed a bill in equity against the two respondents, Phillips and Harbison alleging that the boundary line between his property and that of respondents is disputed. Lay set out what he contends to be the true line as established by adverse possession and by prescription and petitioned the court to establish such as the true line.

According to the paper title to the properties, the dividing line is the section line which divides section 3 and section 4 of Township 12, South, Range 5, West.

It is Lay's contention that regardless of the true location of the section line, he has acquired title by adverse possession and by prescription on the east up to what is designated as 'the old section line' which was pointed out to him as being the section line at the time he acquired land by deed on 8 September 1944.

The old section line at its northern terminus is some 115 feet east of the section line allegedly established by surveys in 1960. In other words, the land in dispute is an extremely elongated triangle one-half mile in length and 115 feet wide at its top.

The complainant, Mr. Lay, testified that he bought his property from Mr. C. E. Calvert in 1944. He and Mr. Calvert walked the east line at the time. It is this east line that is now in dispute. This was understood to be the section line and it was marked by blazes and hatches on trees. The deed which Mr. Lay received from Mr. Calvert was received in evidence. The land is described as being in section 4, Township 12, Range 5, West. The eastern boundary line of this land must therefore be deemed to be the east line of section 4, supra.

Under the undisputed evidence of all witnesses, the land in question belonging to both parties is remote, wild woodland and has never been cultivated. Mr. Lay testified that he has sold timber on this land twice since acquiring it, once in 1946, and again in 1960. On the occasion of one of these sales, he blazed a couple of trees to show the timber cutters how far to go. However, Mr. Lay testified that if one knew where to look one could find old hatch marks on the trees along the old line.

Mr. Calvert who sold the land to Lay, testified that he bought it in 1934 from Durwood Burns. At that time Burns had showed him an old line marked in the woods and that it is the same line to which Lay now claims. Mr. Calvert testified that the land is mostly 'a bunch of holes and hollows' and that he sold the timber on it one time.

Other witnesses testified as to the old hatch mark line up to which Lay now claims, though these marks are quite old and one would have difficulty in tracing this line if not familiar with it.

In brief counsel for appellant, Lay, states that 'as far as appellant's case is concerned, it is immaterial with our contention where the true section line is. The pleadings do not set out the line claimed by the appellant to be a section line. Appellant describes a line established by prescription and adverse possession. The line claimed by the appellant in the pleadings is described by visible monuments and plainly marked lines on trees through timber land which is the only evidence of the line that is now left, since all three corners on said line, and a great part of the old line, are now covered in places by water.'

Section 828, Title 7, Code of Alabama 1940, our adverse possession statute, specifically provides that it does not apply to cases involving a question as to boundaries between coterminous owners. The three alternative prerequisites set forth in Section 828, that is, (1) a deed or other color of title duly recorded for ten years; or, (2) annual listing of the land for taxation in the proper court for ten years, if the land is subject to taxation; or, (3) title by descent cast or devise from a predecessor in title who was in possession of the land, are therefore not necessary to sustain a claim to title by a coterminous owner.

The burden upon Mr. Lay, if he is to extend his documentary title, is to show by the required measure of proof that he has been in the actual, clear, notorious, continuous, adverse and exclusive occupancy of the questioned strip for the ten years required by Section 828, supra, or for twenty years if he seeks to establish absolute repose of title in him by prescription.

Counsel for appellant asserts that the appellant does claim title by prescription as well as by adverse possession, and seeks to assert his prescriptive claim by tacking on the right and interest in the land of his vendor, Mr. Calvert. Since the paper title which Lay obtained from Calvert conveyed only land in section 4, and did not describe the land otherwise, it cannot be deemed that Calvert conveyed to Lay any interest in the disputed strip that he may have acquired by adverse possession. Mims v. Alabama Power Co., 262 Ala. 121, 77 So.2d 648. Any interest that Calvert had in the disputed strip therefore cannot be tacked to Lay's interest to make out the required prescriptive period.

We therefore lay aside appellant's claim of prescriptive right since twenty years had not elapsed since his acquisition of his deed in 1944, though under the facts of this case we cannot see that appellant's claim is in anywise affected if his prescriptive claim be thus discarded, in that no question of the tolling of the statute can arise under the evidence.

Our adverse possession statute of ten years (Sec. 828, supra) is a statute of limitations, Cotney v. Eason, 269 Ala. 354, 113 So.2d 512, whereas our rule of prescription of twenty years is a rule of absolute repose. The very term prescription is derived from 'Praescriptio' meaning a pre-scribing or former writing, and presupposes a lost grant. Further, the presumption rests not only on the supposition of a lost grant, but on the higher ground that it 'conduces to the peace of society, and relieves courts from the necessity of adjudicating rights so obscured by the lapse of time and the accidents of life, that the attainment of truth and justice is next to impossible,' Harrison et al. v. Heflin et al., 54 Ala. 552, and the presumption created by prescription precludes judicial inquiry in a title so acquired. Findlay v. Hardwick, 230 Ala. 197, 160 So. 336.

Thus the absolute presumption arising from a right claimed and exercised for twenty years is not subject to being tolled, whereas our statute of adverse possession, being a statute of limitations is so subject under appropriate circumstances.

Under both our adverse possession statute and our rule of prescription, a claimant to succeed, must show his dominion over the real estate, and his adverse holding and claim, to the same degree and extent, that is, under the statute for a period of ten years, and the prescriptive rule for a period of twenty years. Under the statute, unless a coterminous owner, in addition to adverse possession for the required period of ten years, the claimant must also show one of the three alternative conditions precedent, i. e., color of title, or payment of taxes for ten years, or title by descent cast or devise, etc. Neither of these alternative conditions are required to exercise a claim of right by prescription. Ford v. Bradford, 218 Ala. 62, 117 So. 429.

Section 828, however, relieves a coterminous adverse claimant of these three alternative conditions, though under a long line of decisions he may yet acquire title by the exercise of adverse possession for a period of ten years up to the disputed boundary line. McNeil v. Hadden, infra, and cases cited therein.

Thus where the claim is that of a coterminous owner and no question of tolling is involved, no difference can be discerned insofar as effects and results are concerned, whether the claim be under the statute of ten years, or the prescriptive rule of twenty years, other than the difference in the period of time required for the exercise of the one or the other.

In McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160, the rules pertaining to disputes between coterminous owners relative to a mutual boundary line are stated as follows:

'It is established that: 'If two coterminous proprietors agree on a boundary line, and each occupies to its location, the possession is presumed adverse, and after ten years has the effect of fixing such line as the true one. Turner v. De Priest, 205 Ala. 313, 87 So. 370; Copeland v. Warren, 214 Ala. 150, 107 So. 94; Gunn v. Parsons, 213 Ala. 217, 104 So. 390; Mink v....