Milstead v. Devine

• Decision Date: 09 November 1950
• Docket Number: 1 Div. 403
• Citation: 48 So.2d 530,254 Ala. 442
• Parties: MILSTEAD v. DEVINE et al. MILES et al. v. DEVINE et al. , 404.
• Court: Alabama Supreme Court

Page 530

48 So.2d 530

254 Ala. 442

MILSTEAD v. DEVINE et al.

MILES et al. v. DEVINE et al.

1 Div. 403, 404.

Supreme Court of Alabama.

Nov. 9, 1950.

H. M. Hall, of Bay Minette, for appellants.

Chason & Stone, of Bay Minette, for appellees.

SIMPSON, Justice.

Statutory ejectment by Devine and wife, appellees, against Milstead and Miles, appellants, for a strip of land in the SE 1/4 of Section 23, Township 5 South, Range 3 East, Baldwin County, Alabama.

The question of merit is the propriety of the action of the trial court in giving for the plaintiff the affirmative charge with hypothesis.

The issue between the parties was the determination of the true division line between the SE 1/4 of the SE 1/4, owned by the plaintiffs, and the SW 1/4 of the SE 1/4, in which the defendants' lands were situated. The defendants, Milstead and Miles, owned separate tracts of land in the SW 1/4 of the SE 1/4 adjoining the plaintiffs' land on the west (Milstead to the south and Miles to the north), and the plaintiffs accordingly filed separate suits against them. The two cases were consolidated and tried together in the lower court and the appeal here is as one, so the cases will be considered together.

The area in dispute is a strip of land about 167 feet wide extending north and south throughout the quarter section, the defendants contending for a new line bounding the east of said strip and the plaintiffs contending for an old long-established line fence on the west of said strip. The defendants filed a disclaimer as to any land in the SE 1/4 of the SE 1/4 and, as the statute prescribed, suggested that the issue arose over a disputed boundary line, etc., and by replication the plaintiffs described the disputed area by metes and bounds and thus was the issue presented, the respective parties claiming title to the disputed area.

The plaintiffs rested their claim of title not upon the government survey, but on adverse possession. The evidence was without the slightest conflict that more than thirty-five years previous to the suit, the defendants' predecessor in title erected a line fence separating the two forties, on the boundary line claimed by the plaintiffs; that this fence was placed as the dividing line of the two forties and as the eastern line of the SW 1/4 of the SE 1/4, where the lands of the defendants are situated, and that continuously during said period this line fence had been recognized by the owners of the properties on both sides of the fence as the division line between the two forties; that the plaintiffs acquired their lands some thirteen years before the suit and continued to hold and claim the land up to this division fence and cultivated it accordingly. This evidence clearly established a title by prescription in the plaintiffs and the court acted correctly in giving for them the affirmative charge.

The law is well established that as between adjoining landowners, where a question of boundary line is presented, when parties agree upon the location of a line fence or one of them proceeds to enclose his property and erects a fence intended as a line fence and holds actual and exclusive possession to it as such, his possession is adverse and if continued for ten years ripens into title. Lyons v. Taylor, 222 Ala. 269, 132 So. 171; Brantley v. Helton, 224 Ala. 93, 139 So. 283; Denton v. Corr, 253 Ala. 497, 45 So.2d 288.

And this would be so without regard to the true location of the line. If the possessor and his predecessors in title considered and claimed the land up to the established line as their own, the possession is nevertheless hostile and adverse even though they do not suppose they are claiming more than they own and claim by mistake of fact. Crowder v. Doe, ex dem. Tennessee Coal, Iron & R. R. Co., 162 Ala. 151(8), 50 So. 230; Gunn v. Parsons, 213 Ala. 217, 104 So. 390(2); Branyon v. Kirk, 238 Ala. 321, 191 So. 345; Duke v. Wimberly, 245 Ala. 639, 18 So.2d 554; Guy v. Lancaster, 250 Ala. 287, 34 So.2d 499; Denton v. Corr, supra (4).

The evidence clearly brought the plaintiffs' case within the influence of these well recognized principles. Rather than the predecessors of the plaintiffs erecting a line fence, it was erected by the defendants' predecessor in title as the true division line and defendants' predecessors, as well as the landowners on the...