McKee v. Goldthwaite, 3 Div. 471

• Court: Supreme Court of Alabama
• Writing for the Court: MADDOX; HEFLIN
• Citation: 287 Ala. 232,250 So.2d 682
• Parties: Walter McKEE, as Superintendent, etc., et al. v. Alfred W. GOLDTHWAITE.
• Decision Date: 20 May 1971
• Docket Number: 3 Div. 471

Page 682

250 So.2d 682 287 Ala. 232 Walter McKEE, as Superintendent, etc., et al.
v.
Alfred W. GOLDTHWAITE. 3 Div. 471. Supreme Court of Alabama. May 20, 1971.
Rehearing Denied Aug. 5, 1971.

V. H. Robison, Montgomery, for appellant.

[287 Ala. 233] Alfred W. Goldthwaite, Montgomery, pro se.

MADDOX, Justice.

In 1939, Olivia Arrington deeded to the appellant, Montgomery County School Board, three acres of land for a recited consideration of $60. The Board built and operated Arrington School in Montgomery County on a tract of land not deeded to it for a period of almost twenty-eight years as a school for Negro children until the school was ordered closed by the United States District Court in Montgomery. The Board advertised the school site for sale and Alfred W. Goldthwaite, heir of Olivia Arrington, and present owner of the land surrounding the school site filed this action in equity, asking the court to order the School Board to vacate the land on which the school was built and to find that the three acres originally deeded to the Board and not used by it had been abandoned. Goldthwaite also sought a temporary injunction to prevent the Board from selling the property. The Board made no claim to the land originally deeded to it by Olivia Arrington, but in its answer and cross-bill, stated that it had gone into possession of the school site based on a survey of the land described in the 1939 deed and made by a civil engineer named George Pickett, and asked the court to order that it was the owner of the land on which it had built the school and which it had possessed since 1939.

Neither the School Board nor the original owners nor their heirs were aware that the school was located on a site different from that specified in the 1939 deed from Olivia Arrington to the Board, until 1966, when a survey made at the request of Goldthwaite revealed the fact that the school might be mislocated.

The following is a diagram of the disputed property as shown by a survey made at the direction of the court:

Page 683

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

[287 Ala. 235]

Page 684

The court, after hearing the evidence, entered a decree which ordered the Register to deliver a deed to Goldthwaite to both tracts, the original tract deeded to the Board by Olivia Arrington and the tract on which the school was located. The trial court did give the Board the right to remove its building from the land within a reasonable time.

The evidence seemed to show without contradiction that the Board of Education built the Arrington School on property which was not deeded to it, but that the former owners and Goldthwaite never questioned the location of the school. Goldthwaite testified that he was not claiming that his predecessor had made a 'gift' of the three acres to the Board, but that he had always 'assumed' that the Board had built the school on the land deeded to it. It appears from the record that the land on which the school was located was fenced during the entire period of the Board's possession and Goldthwaite was aware of this fact.

We think the trial court was incorrect in ordering the Register to grant to Alfred W. Goldthwaite the tract occupied by the Board and used by it as a school site.

The School Board's claim to the Arrington School site is founded on the doctrine of prescription, the Board saying that it was in possession of the land openly and adversely for more than twenty years. This Court has previously decided that a school board can acquire title to land by adverse possession, Morgan v. Cherokee Co. Bd. of Educ., 257 Ala. 201, 58 So.2d 134 (1952), Fudge v. County Bd. of Educ. of Wilcox, 272 Ala. 521, 133 So.2d 38 (1961); therefore, the sole question remaining is whether possession by mistake can be adverse? We answer that question affirmatively.

In Branyon v. Kirk, 238 Ala. 321, 191 So. 345 (1939), this Court said:

'* * * Whether the possession to a given location is adverse is one of intention. If it was so held because he considered it his own, and claimed it as his own, it is hostile though he does not suppose he is claiming more than he owns; and that such claim is by a mistake of fact. It is not necessary for one to know that he is claiming the property of another when he is in the actual possession of it to make such possession adverse to the true owner. If he is in the actual possession with the intention to hold it and claim it as his own, it is adverse. Brantley v. Helton, 224 Ala. 93, 139 So. 283.'

This...