McLester Bldg. Co. v. Upchurch

• Decision Date: 26 November 1912
• Citation: 60 So. 173,180 Ala. 23
• Parties: MCLESTER BLDG. CO. v. UPCHURCH.
• Court: Alabama Supreme Court

60 So. 173

180 Ala. 23

MCLESTER BLDG. CO. v. UPCHURCH.

Supreme Court of Alabama

November 26, 1912

Appeal from Chancery Court, Tuscaloosa County; A. H. Benners Chancellor.

Bill by A. J. Upchurch against the McLester Building Company. Decree for complainant, and defendant appeals. Reversed, rendered and remanded.

Oliver Verner & Rice, of Tuscaloosa, for appellant.

London & Fitts, of Birmingham, for appellee.

ANDERSON J.

There is no question as to the respondent's legal title to and ownership of lot 162. Nor is there much doubt as to its being 165 feet deep, or that the stable of the complainant encroaches upon same several feet. The complainant's theory is that lot 162 was not 165 feet deep and that the line of his stable is on the true line between lots 162 and 159, or, if not the true line as per the original survey and measurements, that the line now claimed by him to be the true line was previously regarded and recognized by the joint owners for years and years as the true and real boundary line between said lots. In other words, that they regarded a certain iron pin as designating the true line, and each owner claimed to said line and no further and without regard to whether it was or was not the line as fixed by the plats and surveys.

Our court has often laid down the doctrine as to what did and did not amount to adverse possession between coterminous landowners and when a line, which was not the true boundary line, but which was treated as such by the parties, actually became such and when it did not. This question has been considered in the cases of Walker v. Wyman, 157 Ala 485, 47 So. 1011; Hess v. Rudder, 117 Ala. 525, 23 So. 136, 67 Am. St. Rep. 182; Taylor v. Fomby, 116 Ala. 621, 22 So. 910, 67 Am. St. Rep. 149; Brown v. Cockrell, 33 Ala. 38; and many other cases. "Possession to be adverse must be held under claim of right, and there can be no adverse possession without an intention to claim title. Hence it is essential to the proper determination of the character of the possession to consider the intention with which it was taken and held. If one occupies land up to a certain fence because he believes that to be the line of his land, but not having any intention to claim up to the fence, if it should be beyond the line, the intent to claim title does not exist coincident with the possession, and the possession up to the fence is not therefore adverse. Where, however, the coterminous owners agree upon a line as the dividing line and occupy up to it, or when one of them builds a fence as the dividing line and occupies and claims to it as such, with knowledge of such claim by the other, the claim is presumptively hostile and the possession adverse." Hess v. Rudder, supra. We may concede that the coterminous owners agreed upon the line as fixed by the iron pin, as the real dividing line between lot 162 and the eastern boundary of lot 159, whether it was the true and original boundary line or not, and acquiesced therein for years and years, and to the extent of fixing it as the boundary line. Then the question arises: Where is the proper location of the line as fixed and agreed upon?

The respondent established ownership of lot 162, and that the complainant's building encroaches upon same; therefore the burden of proof is upon the complainant to establish the changed line. In other words, the burden is upon the complainant to show title to the strip, by adverse possession, and to fix with a certain degree of definiteness the extent and boundaries of the land so claimed.

We do not think that the complainant has discharged the burden of showing that his stable is west of the line as formerly fixed by the iron pin, and are also of the opinion that it was not the intention of the complainant's predecessors to claim...