Lee v. Brown

• Decision Date: 20 December 1985
• Citation: 482 So.2d 293
• Parties: Bobby LEE v. Kenneth L. BROWN and Ruth C. Brown. 84-780.
• Court: Alabama Supreme Court

Page 293

482 So.2d 293

Bobby LEE v. Kenneth L. BROWN and Ruth C. Brown.

84-780.

Supreme Court of Alabama.

Dec. 20, 1985.

John R. Phillips of Phillips & Rice, Anniston, for appellant.

Herbert D. Jones, Jr. of Burnham, Klinefelter, Halsey, Jones & Cater, Anniston, for appellees.

BEATTY, Justice.

Defendant, Bobby Lee, appeals from the trial court's order determining the boundary in a dispute between adjoining landowners in Calhoun County.

All of the property at issue in this case was previously owned by John Martin. On November 7, 1969, Martin conveyed a tract of land in the southwest corner of his property to his grandson Donald Martin and Donald's wife Alice, that tract being described in the deed as follows:

"That certain tract of land situated, lying, and being in the W 1/2, Section 23, Township 13, Range 6. Beginning on the West section line of Section Twenty-Three, Township 13, Range 6, at the point where the Harrell Gap black top road intersects with said section line, thence proceeding in an easterly direction along the road a distance of 500 feet, more or less, to a point, thence in a northerly direction a distance of 566 feet, more or less, to a point, thence in a westerly direction a distance of 500 feet, more or less, to the section line, said line being parallel to aforesaid black top road, thence in a southerly direction along said section line a distance of 566 feet, more or less, to the point of beginning. Said tract lying and being situated in Calhoun County, Alabama. Said tract containing six acres, more or less."

No survey was made at the time of that sale; John Martin, Donald Martin, and a third person staked the boundaries, using a hundred-foot tape measure and a compass. John Martin testified at trial that they began in the northeast corner of the tract On October 27, 1971, John Martin sold the remaining portion of his land to defendant Bobby Lee. The deed conveyed to Lee the entire tract previously owned by John Martin, excepting the portion already conveyed to Donald Martin, which was described in Lee's deed by language identical to that quoted above. At the time of the sale, John Martin showed defendant Lee the four corners of the tract previously conveyed to Donald and his wife.

being sold and placed an iron stake near a telephone pole. They proceeded west to a blazed hickory tree, south to the road running east and west across the property, east to another iron stake, and then north to the point of beginning.

In 1973, Donald and Alice Martin conveyed the smaller tract to Rickey and Martha Howard. The Howards conveyed the property to Charles and Gay Nell Spurgeon. Pursuant to a divorce settlement, Charles Spurgeon conveyed his interest in the property to his ex-wife. Upon Mrs. Spurgeon's remarriage, she and her husband, John Farner, conveyed the property to themselves and later to the plaintiffs, Kenneth and Ruth Brown.

Donald Martin testified that he showed the four corners of the smaller tract to Rickey Howard at the time the Howards purchased the land. Similarly, Charles Spurgeon testified that he was shown the corners before he and his wife purchased the property. Both plaintiffs testified, however, that they were not shown the boundaries because the Farners did not know where they were.

The present dispute arose after a survey revealed a discrepancy between the description of plaintiffs' property in their deed and the boundaries as shown to defendant by John Martin. Specifically, the survey showed that plaintiffs hold record title to more land on the northern and eastern sides of their tract than defendant had contemplated. (See the diagram attached as an appendix to this opinion.)

Plaintiffs filed suit alleging that defendant had willfully trespassed on their property and damaged it by cutting timber. Defendant's counterclaim requested that the court determine the true boundary and reform the deeds by which the parties claim title to their respective properties, on the ground of mutual mistake in the descriptions in the deeds.

The trial court separated for trial the issues raised in the counterclaim from the trespass claim and, after hearing testimony presented ore tenus, found that defendant Lee had adversely possessed that portion of plaintiffs' property southeast of the north-south road, and awarded this portion to defendant. This section had been fenced in and cultivated by defendant each year since 1971. However, with respect to the other portions claimed by defendant, the trial court found insufficient evidence that defendant had adversely possessed any other part of plaintiffs' property not under fence. Furthermore, the court denied defendant's request for reformation of the deeds on the ground that plaintiffs were bona fide purchasers. The trial court's order was made final pursuant to Rule 54(b), A.R.Civ.P. Defendant's motion for new trial was denied.

The first issue is whether the trial court erred in determining that defendant had not acquired title to the disputed property on plaintiffs' northern boundary and the disputed property on plaintiffs' eastern boundary west of the road. A coterminous landowner may acquire title by adverse possession if he proves that he had open, notorious, hostile, continuous, and exclusive possession of the property for ten years. Tidwell v. Strickler, 457 So.2d 365, 368 (Ala.1984). He need not show color of title or any of the other requirements of Code of 1975, § 6-5-200. Id. However, the burden of proof rests upon the party asserting adverse possession, and every presumption is in favor of the holder of legal title. Roberts v. Mitchell, 437 So.2d 512, 514 (Ala.1983).

Defendant presented evidence that he cut hay on plaintiffs' eastern property and that in plaintiffs' northern property he had cleared a section with a bulldozer, cut hay When a trial court hears ore tenus evidence, its findings of fact will not be disturbed on appeal unless they are clearly erroneous or manifestly unjust. Scarbrough v. Smith, 445 So.2d 553, 555 (Ala.1984). In Scarbrough, this Court stated:

and planted some fruit trees. However, the trial court, taking ore tenus testimony, found that there was insufficient evidence that the defendant adversely possessed "any particular portion" of the disputed section.

"Evidence in adverse possession cases is especially difficult to weigh from the vantage point of an appellate court. Witnesses often testify with reference to exhibits and make gestures not capable of preservation in the record.... The presumption of correctness normally attending findings in an ore tenus case is, therefore, especially strong in adverse possession cases. Where the trial court makes findings of fact in order to establish a land line, the court's findings will be sustained if there is any credible evidence...