Lilly v. Palmer

• Decision Date: 01 August 1986
• Citation: 495 So.2d 522
• Parties: Mamie LILLY v. David PALMER. 84-1022.
• Court: Alabama Supreme Court

Page 522

495 So.2d 522

Mamie LILLY v. David PALMER.

84-1022.

Supreme Court of Alabama.

Aug. 1, 1986.

Kenneth Cooper, Bay Minette, for appellant.

L.D. Owen, of Owen & Cherry, Bay Minette, for appellee.

MADDOX, Justice.

This appeal presents an issue of adverse possession in a boundary line dispute between coterminous landowners.

In 1969 Plaintiff Mamie Lilly purchased some land in Baldwin County from Alabama Palmer. The land was inclosed by a fence, and, being "open" and containing approximately 7 1/2 acres, it was known in the community as "the 7 1/2-acre field." Ms. Palmer previously had cultivated cotton, corn, and sugar cane on the land.

Before receiving the deed to the property, plaintiff Lilly walked over the land with Ms. Palmer. Plaintiff testified that, based on the deed and her understanding with Ms. Palmer, she purchased the entire 7 1/2-acre field--"Everything that was inside the fence was what I was supposed to own."

In 1971 Ms. Palmer sold 20 acres of land to her nephew, defendant David Palmer. The 20-acre tract adjoined and lay just to the east of plaintiff's 7 1/2-acre field.

Sometime prior to the filing of this lawsuit in 1983, plaintiff discovered that some question existed as to her title to portions of the 7 1/2-acre field. She filed an action in the Baldwin County Circuit Court to quiet title to the property. She named six defendants and asked the court to decree that she was the "sole owner in fee simple" of the property.

The controversy between plaintiff and defendant Palmer concerned a strip of land consisting of 2.297 acres which constituted part of the eastern side of plaintiff's 7 1/2-acre field and part of the western side of defendant's 20-acre tract. Plaintiff and defendant both claimed the land by virtue of their respective deeds from Ms. Alabama Palmer. In addition, and in the alternative, plaintiff claimed the land by adverse possession. She claimed that she owned everything inside a fence, which was not located on the deed line, but was located to the east of the deed line and on the western portion of Palmer's 20-acre tract. See Appendix A for a location of the "deed line" and "old irregular fence," both running north-south.

At the non-jury trial, plaintiff testified, as follows, to support her claim of adverse possession: (1) the 7 1/2-acre field, including the disputed 2.297 acres, was inclosed by a fence; (2) she, or her grandson, had a residence located on the 7 1/2 acres; (3) she had horses pastured in the field; (4) she had someone mow the field every year; (5) she had a vegetable garden in the field; (6) she annually paid taxes on the land; and (7) in 1969 she had conveyed a right-of-way across the disputed strip to a Mr. and Mrs. Edwards.

Plaintiff testified as follows:

"Q. When you bought the property--First, let's come up to the board and ask you to point out the property that you bought. You point it out to the Court if you would.

"Come around, get down from your chair, and come around and show us.

"A. Well, I bought what was fenced in. Let's just put it that way.

"Q. You come point it out.

"A. Okay. I don't know too much about these things.

"Q. I'm going to take this down and you stand back a little bit. You get on your right so that the Judge can see what you are going to point out and what you will be saying here. You have seen this map [Appendix A] before; is that right?

"A. Yeah, but I still don't understand it.

"Q. James Garrick and Associates has Mamie Lilly on it. Did you have him to do this survey for you?

"A. Yeah, I sure did.

"Q. And you have seen this map before today; is that right?

"A. Uh-huh.

"Q. In fact, you brought this to me when you retained me to represent you in this case; is that correct?

"A. Yes.

"Q. Now, according to your deed in the Bill of Complaint here, you start over here and you go to the point of beginning. You go down here and on this same time you come down here and back up here, and then, over here. That piece in there is this line here.

"That is what is called for in the deed. You understood that, didn't you?

"A. (No response.)

" * * *

"Q. Let me ask you this. After you bought it, did you take possession of the land from the east fence to the west fence?

"A. The field, yeah, the whole field.

"Q. You took the whole field?

"A. That's right.

"Q. And did it go up to the south boundary of the land that's now owned by the Edwardses?

"A. That's right.

"Q. And did it go all the way to what they call, I believe this is the Red Hill Road?

"A. Yeah.

"Q. Did it go down to that point?

"A. That's right.

"Q. And we referred to that as Airport Road?

"A. That's right.

"Q. And you got all this land from this point here up to here and back over here?

"A. (Nods head affirmatively.)

"Q. And we got a line back over here as such. Here's where the point begins. Now, this shows on the map that this is to be a fence.

"Did you take possession of the land after you bought it back to the fence over there?

"A. Back to the fence.

"Q. And did it go all the way to this fence?

"A. Right.

"Q. And all the way down here to this intersection where it makes the V point?

"A. That's right.

"Q. And on the north side, you went up to this point here?

"A. Yeah.

"Q. Is that correct?

"A. Yes, just the fence.

"Q. You speak up. He can't read your mind.

"A. The whole field that was inside the fence, it was all of it."

Although references are made to certain points on the map, a portion of which is appended to this opinion as Appendix A, it is clear that she testified that she intended to possess and did, in fact, possess all the land inclosed within the fence, shown on Appendix A.

Plaintiff also produced two witnesses who testified that up until the time this lawsuit was filed, no one had claimed the field other than plaintiff and that plaintiff owned the entire 7 1/2-acre field.

Defendant offered the following evidence to rebut plaintiff's evidence of adverse possession for ten or more years: (1) he had annually paid taxes on the land, and (2) he had cut timber on the land.

The trial court rendered judgment for defendant Palmer, and in its final order simply said, "David Palmer is the owner of that part of the property described in his deed."

Plaintiff appeals to this Court from the judgment rendered for defendant Palmer. On appeal, plaintiff concedes that the description in her deed does not include the 2.297 acres in controversy, and that the trial court correctly determined that defendant's deed encompassed the 2.297-acre strip. Thus, the only issue plaintiff presents on appeal is whether the trial court erred in implicitly finding that plaintiff had not adversely possessed the 2.297-acre strip in controversy, as a matter of law.

In the instant case, the trial court found, for reasons undisclosed, that plaintiff failed to produce clear and convincing proof of her adverse possession. Defendant argues that the trial court's finding and judgment are entitled to a presumption of correctness because the evidence and testimony were presented ore tenus and because this is an adverse possession case. Indeed, it has long been the law in this state that "anytime a trial court has heard evidence presented ore tenus and resolves conflicting questions of fact in favor of one of the parties, its findings will not be disturbed on appeal unless they were clearly erroneous or manifestly unjust." Scarbrough v. Smith, 445 So.2d 553, 555 (Ala.1984) (adverse possession case).

The presumption developed in our law because the trial court has the benefit of seeing and hearing the evidence presented, and, therefore, is a better judge of the credibility of witnesses and the accuracy of certain evidence presented than is an appellate court. The cold record before an appellate court, no matter how meticulous its transcription, is incapable of truly reflecting certain human actions and reactions that occur during a trial. The special nuances of the human voice and the infinite number of human facial expressions are incapable of transcription, and, yet, we recognize them as frequently highly indicative of credibility. In addition, in adverse possession cases, the special nature of much of the evidence presented makes clear transcription difficult. Witnesses frequently testify to the existence of "lines, locations, distances, monuments, culverts, fences and the like" by pointing or verbally referring to a diagram. Barnett v. Millis, 286 Ala. 681, 684, 246 So.2d 78, 80 (1971). That is true here, as shown by the quoted portion of plaintiff's testimony. An appellate court is without the benefit of the "pointing finger or any information which enables [it] to determine the particular line, location, distance, monument, culvert or fence to which the witness referred." Id. Accordingly, the ore tenus presumption of correctness as to the trial court's findings of fact is "especially strong in adverse possession cases." Scarbrough, supra, at 556.

The presumption, however, even in adverse possession cases, is inapplicable where the facts are undisputed and the issue is resolved simply by applying the relevant law to these undisputed facts. Mardis v. Nichols, 393 So.2d 976, 979 (Ala.1981) (boundary dispute between coterminous landowners where facts were "undisputed"; this Court reversed judgment of the trial court, which had heard testimony presented ore tenus and had found no adverse possession); see generally, Security Insurance Co. of Hartford v. Smith, 360 So.2d 280 (Ala.1978). We find that, with one exception, the instant case involved undisputed facts. Plaintiff testified that she had intended to possess the entire field as inclosed by the fence; that she had a residence in the field; that she pastured horses in the field; that her son annually mowed the field; that she had conveyed a right-of-way through the field, that she had a vegetable garden in the field; and that she had paid taxes on the field. Defendant, himself, did not testify and did not produce evidence to contradict...