Mintz v. Millican, 7 Div. 272

CourtSupreme Court of Alabama
Writing for the CourtGOODWYN; LIVINGSTON
Citation266 Ala. 479,97 So.2d 769
PartiesEra L. MINTZ v. Lola Mae Cox MILLICAN et al.
Decision Date24 October 1957
Docket Number7 Div. 272

Page 769

97 So.2d 769
266 Ala. 479
Era L. MINTZ
v.
Lola Mae Cox MILLICAN et al.
7 Div. 272.
Supreme Court of Alabama.
Oct. 24, 1957.

[266 Ala. 481]

Page 770

Ross Blackmon, Anniston, for appellant.

Merrill, Merrill, Vardman & Matthews, Anniston, for appellees.

[266 Ala. 480] The following charges were given at defendant's request:

'2. The Court charges the jury that the mere claim of a right or title to land not accompanied by actual possession of the same, no matter how long continued such claim of right and title may be, and no matter how loudly and vociferously or noisy and publicly the mere claim of right or title may have been made, it is not sufficient to cut off the right of entry in the true owner, and if the land be vacant, he may enter thereon without wrong, in safe defiance of any such mere claim of rights or title; nor is the right of recovery cut off by said claim of right or title; and if the person who makes such claim has not been in possession of the land actually for a sufficient tiem to cut off the title of the owner under the statutes of Alabama, he may maintain an action for recovery of the land, no matter how long the party has asserted his mere claim of right and title, and regardless of the publicity which may have been given to such mere claim of right and title.'

'7. I charge you, Gentleman of the Jury, that possession to a dividing line, which is not the true line, is not adverse where the party so holding intends to hold only to the true line.'

'11. I charge you, Gentleman of the Jury, that an occasional cutting and encroachments of timber is not in and [266 Ala. 481] of itself sufficient possession of lands to satisfy the doctrine of possession in adverse possession.'

GOODWYN, Justice.

This is a statutory action in the nature of an action in ejectment (Code 1940, Tit. 7, § 938; Tit. 7, § 223, Form 32) brought by appellant, Era L. Mintz, in the circuit court of Calhoun County against appellee, Lola Mae Cox Millican, in which defendant Millican filed her suggestion in writing that the suit arises over a disputed boundary line (Code 1940, Tit. 7, § 942). The land involved is a strip 179 feet by 1,320 feet along the North line of the SE 1/4 of the SE 1/4 of Section 22, Township 13, Range 7 East, in Calhoun County.

This is the fifth time this case has been before this court. The prior appeals are reported as follows: Mintz v. Millican, 248 Ala. 683, 29 So.2d 230; Millican v. Mintz, 251 Ala. 358, 37 So.2d 425; Millican v. Mintz, 255 Ala. 569, 52 So.2d 207; Millican v. Mintz, 260 Ala. 22, 68 So.2d

Page 771

702. We see no necessity of detailing here the points dealt with on the other appeals.

[266 Ala. 482] The jury returned a verdict in favor of defendant Millican. The plaintiff's motion for a new trial being overruled, he brought this appeal.

There are 34 assignments of error, many of which are either expressly waived or not insisted upon. Our decision will be limited to those properly presented for review.

The record, on first consideration, presents a seemingly unending complex pleading situation. However, after considerable time spent in reaching and rereading it, we are at the conclusion that the two principal issues presented for review on this appeal are as follows: (1) Whether the plaintiff (Mintz) has acquired title to the strip of land by adverse possession, and (2) whether he is entitled to the strip under the principle that 'if two owners of adjacent lands agree on a division line between tracts of land, and each holds possession for ten years, claiming to said line, the title becomes perfect without regard to the true location of the boundary line between them.' Isaacks v. Clayton, 254 Ala. 450, 451, 48 So.2d 536, 537.

Plaintiff's complaint, as it went to the jury, consisted of amended Count A, seeking recovery of the following lands:

'A strip of land 179 feet long by 1320 feet in width off the north side of the SE 1/4 of the SE 1/4 of Section 22, Township 13, Range 7 East, Calhoun County, Alabama, being more particularly described as follows:

'Beginning at a point 1,153 feet north of the SE Corner of the SE 1/4 of the SE 1/4 of Section 22, Township 13, Range 7 East, and extending thence west 1,320 feet to the west line of the SE 1/4 of the SE 1/4 of said section, township and range; thence north along said west line a distance of 179 feet; thence east a distance of 1,320 feet to the east line of said SE 1/4 of the SE 1/4 of said Section 22; thence south along the east line of said SE 1/4 of the SE 1/4 a distance of 179 feet to the point of beginning; * * *'

The defendant, in suggesting that the suit arises over a disputed boundary line, describes the location of the true line as follows:

'* * * that the true boundary line between plaintiff's and the defendant's property commences at the southeast corner of Section 22, Township 13, Range 7 East, which said point is marked by a pine knot and pile of rocks, and from thence running north along the easterly line of said section a distance of 1332 feet to the quarter section line, from thence deflect to the left so as to form an interior angle of 89 degrees 40 minutes, and parrallel with the south line of said section a distance of 1345 feet to the northwest corner of the southeast 1/4 of the southeast quarter of said section, from thence deflect to the right so as to form an interior angle of 89 degrees 40 minutes, running in a northerly direction along the west line of the northeast quarter of the southeast quarter a distance of 1332.5 feet to a point in a sedgefield, thence deflect to the left so as to form an interior angle of 89 degrees 40 minutes and run in a westerly direction down the north line of the northwest quarter of the southeast quarter a distance of 1345 feet to the center of said section, thence deflect to the right so as to form an exterior angle of 89 degrees 40 minutes and run in a northerly direction along the center line of the said section 22, a distance of 1332.5 feet to the northeast corner of the southeast quarter of the northwest quarter; all...

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11 practice notes
  • Fuller v. State, 6 Div. 917
    • United States
    • Supreme Court of Alabama
    • February 12, 1959
    ...unjust as to work a reversal. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785; Mintz v. Millican, 266 Ala. 479, 97 So.2d 769; [269 Ala. 334] State v. Carter, 267 Ala. 347, 101 So.2d Appellant's Proposition of Law No. VI 'Evidence of statements made by......
  • Cloud v. Southmont Development Co., 6 Div. 796
    • United States
    • Supreme Court of Alabama
    • October 7, 1971
    ...are not necessary to sustain a claim to title by a coterminous owner, Stokes v. Hart, 273 Ala. 279, 139 So.2d 300; Mintz v. Millican, 266 Ala. 479, 97 So.2d 769; Guy v. Lancaster, 250 Ala. 226, 34 So.2d 10, or to exercise a claim of right by prescription. Ford v. Bradford, 218 Ala. 62, 117 ......
  • Super Valu Stores, Inc. v. Peterson
    • United States
    • Supreme Court of Alabama
    • March 27, 1987
    ...in favor of the correctness of the verdict is strengthened. Smith v. Smith, 254 Ala. 404, 48 So.2d 546; Mintz v. Millican, 206 Ala. 479, 97 So.2d 769.' We are of the opinion that there was sufficient evidence before the jury for the jury to find that Super Valu breached its contract with Pe......
  • Grandquest v. Williams, 1 Div. 915
    • United States
    • Supreme Court of Alabama
    • November 16, 1961
    ...and the presumption in favor of the correctness of the verdict is strengthened when a new trial is denied by the court. Mintz v. Millican, 266 Ala. 479, 97 So.2d 769. Furthermore, on appeal from a judgment for the plaintiff this court must review the tendencies of the evidence most favorabl......
  • Request a trial to view additional results
11 cases
  • Fuller v. State, 6 Div. 917
    • United States
    • Supreme Court of Alabama
    • February 12, 1959
    ...unjust as to work a reversal. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785; Mintz v. Millican, 266 Ala. 479, 97 So.2d 769; [269 Ala. 334] State v. Carter, 267 Ala. 347, 101 So.2d Appellant's Proposition of Law No. VI 'Evidence of statements made by......
  • Cloud v. Southmont Development Co., 6 Div. 796
    • United States
    • Supreme Court of Alabama
    • October 7, 1971
    ...are not necessary to sustain a claim to title by a coterminous owner, Stokes v. Hart, 273 Ala. 279, 139 So.2d 300; Mintz v. Millican, 266 Ala. 479, 97 So.2d 769; Guy v. Lancaster, 250 Ala. 226, 34 So.2d 10, or to exercise a claim of right by prescription. Ford v. Bradford, 218 Ala. 62, 117 ......
  • Super Valu Stores, Inc. v. Peterson
    • United States
    • Supreme Court of Alabama
    • March 27, 1987
    ...in favor of the correctness of the verdict is strengthened. Smith v. Smith, 254 Ala. 404, 48 So.2d 546; Mintz v. Millican, 206 Ala. 479, 97 So.2d 769.' We are of the opinion that there was sufficient evidence before the jury for the jury to find that Super Valu breached its contract with Pe......
  • City of Tallassee v. Harris
    • United States
    • Supreme Court of Alabama
    • April 1, 1983
    ...in favor of the correctness of the verdict is strengthened. Smith v. Smith, 254 Ala. 404, 48 So.2d 546; Mintz v. Millican, 206 Ala. 479, 97 So.2d 769. We cannot say that the trial court erred in overruling the motion for a new trial on the grounds that the Page 1182 verdict was contrary to ......
  • Request a trial to view additional results

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