McCallister v. Jones

• Decision Date: 20 May 1983
• Citation: 432 So.2d 489
• Parties: Charles Jerry McCALLISTER and wife, Melinda H. McCallister, et al. v. Slade G. JONES, Barbara A. Jones and Howard Womack. 82-20.
• Court: Alabama Supreme Court

Page 489

432 So.2d 489

Charles Jerry McCALLISTER and wife, Melinda H. McCallister, et al. v. Slade G. JONES, Barbara A. Jones and Howard Womack.

82-20.

Supreme Court of Alabama.

May 20, 1983.

Barry Bledsoe of Byrd & Carter, Dothan, for appellants.

James Ward, III of Bullard & Ward, Dothan, for appellees.

MADDOX, Justice.

We must determine whether the trial court properly decided the location of a line and the disputed ownership of several acres of land. The property in dispute is depicted in the shaded portion of the drawing found in Appendix A. We hold that the trial court's judgment was proper and affirm.

The McCallisters, plaintiffs-appellants, testified that they purchased their interest in the land involved in this dispute, referred to as South Farm, from James Otis Byrd and his wife in 1967. Slade Jones, a defendant-appellee, testified that he acquired his interest in North Farm, which includes the disputed boundary line, by inheritance in 1968 or 1969. Jones and his wife conveyed twenty-two acres, including the disputed parcel, to Howard Womack, another defendant-appellee, in March 1979.

The McCallisters claim the line labeled as Line A in the drawing to be the correct boundary line. Jones and Womack, on the other hand, assert that the line labeled as Line B in the drawing is the proper boundary line. While the McCallisters acknowledge that the boundary line in dispute was originally the line designated in the drawing as Line B, they claim that the boundary was changed to the line labeled A by the adverse possession of their predecessors in title.

Mr. H.B. Espy testified in his deposition, which was later admitted into evidence at the trial, that he built the fence that runs along Line A sometime during the period of 1910 to 1914. Mr. Espy further testified that the fence was changed from its original location, Line B, to its new location, Line A, because every time the river rose, it washed the fence away. Thus, as an economy measure he "angled it over to the side and built it." At the time, title to all the land was in an estate. There was no testimony at the trial regarding the disputed boundary line during the time from about 1916 until 1954, except that Elijah Branton, a surveyor called by the McCallisters as a witness, testified that the fence wire found on the old fence line claimed by the McCallisters was very old so as to indicate that it was in existence at that location between 1916 and 1954.

John E. Byrd testified that he had knowledge of the disputed boundary line since 1958, when he had investigated purchasing the property either individually or for Peoples Savings Life Insurance Company (hereinafter life insurance company) while he was serving as the company's president. John Byrd stated that in his capacity as president of the life insurance company, he purchased South Farm in 1962 from W.H. Arnold. Byrd testified that at the time of the purchase he and Arnold discussed and walked the three to five acres presently the center of this controversy and that Arnold represented that the disputed parcel was his and that he, Byrd, purchased it from Arnold as a part of the larger tract. John Byrd further testified that during the period the life insurance company owned the land, he regularly went onto the disputed land, that fire lanes were plowed on it, that cows were run on it, that he hunted on it, and that he replaced the fence located on Line A with a new one. Although Byrd mentioned that trespassing signs were posted on the disputed acreage, he did not state when they were posted. He also testified that from 1958 until about 1971 or 1972, there was never a fence located on what is labeled as Line B in the drawing.

James Otis Byrd testified that he was familiar with the disputed boundary line from 1962 until 1977. In 1977, the South Farm was transferred from the life insurance company to James Otis Byrd and he sold the farm to the McCallisters on April 4, 1977. Jerry McCallister testified that when he first became familiar with the land in 1954, there was a fence located along Line A and that it remained there continuously until about 1973, when his contact with South Farm temporarily ended.

Slade Jones testified that he inherited the land in dispute in approximately 1968 or 1969, and that he had the land surveyed about 1971. He stated that he had the surveyor begin where the line labeled as Line A intersects with the river, however, the surveyor discovered that the property description in the deed did not work from that starting point, but rather should run along what is labeled as Line B. Slade Jones testified that he tore down the fence located along Line A, either in 1973 or 1974, and placed another fence along Line B, where, he testified, he found the remnants of an old fence when he dug underground. Although Slade Jones testified that he had no idea who tended the disputed area prior to 1973, he stated that he had paid taxes on the disputed land from the time he inherited it.

The evidence was heard by the court ore tenus. The trial judge ruled against the McCallisters, holding that the proper boundary line was the boundary line as contained in the legal description contained in the deeds held by both parties. The McCallisters' motion for a new trial was denied and this appeal followed.

The McCallisters premise their claim that the line labeled as Line A is the proper boundary line on the following reason:

"In the case at bar, Mr. Espy testified in his deposition that he built the fence that runs along [Line A, as indicated in Appendix A] somewhere around 1910 to 1914. At this period of time, the land on both sides of the fence were parts of the Espy Estate. Based upon Mr. Espy's testimony, it is logical to infer that the fence in question was put up by agreement between the contiguous owners of the property and that ten years after the date title vested in the McCallisters' predecessor in title. Thus, a new boundary line was established by agreement in approximately 1924, ten years after erection of the fence. In this regard, the evidence is undisputed that the fence erected by Mr. Espy, or at least a fence in the same location, existed from 1954 until it was torn down by Slade Jones around 1974 or 1975. A further reasonable inference is that the same fence was used as a boundary line between 1914 and 1954."

The Court, however, does not agree that the trier of fact was bound by the McCallisters' reasoning as to this particular issue. In Kerlin v. Tensaw Land & Timber Co., Inc., 390 So.2d 616 (Ala.1980), we held:

"Boundary disputes are subject to a unique set of requirements that is a hybrid of the elements of adverse possession by prescription and statutory adverse possession. In the past there has...