Mintz v. Millican, 7 Div. 272

• Court: Alabama Supreme Court
• Writing for the Court: GOODWYN; LIVINGSTON
• Citation: Mintz v. Millican, 266 Ala. 479, 97 So.2d 769 (Ala. 1957)
• Decision Date: 24 October 1957
• Docket Number: 7 Div. 272
• Parties: Era L. MINTZ v. Lola Mae Cox MILLICAN et al.

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.

Ross Blackmon, Anniston, for appellant.

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

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

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 according to the original government survey. A survey showing the boundary as hereinabove described, prepared and certified by E. H. Lee and dated August 25, 1945, is attached hereto and made a part hereof, with the usual leave of reference.'

It is to be noted that defendant's description of the true line includes portions not now before us. We are concerned only with the boundary line between the NE 1/4 of the SE 1/4 and the SE 1/4 of the SE 1/4, Section 22.

For a better understanding of the situation we reproduce, in the rough, the following portion of the Lee map:

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

The plaintiff filed ten separate replications to the defendant's suggestion of a boundary line dispute. Only numbers 1, 5, 6, 7 and amended No. 8 are before us.

In Replication No. 1 the plaintiff took issue with the defendant 'as to the truth of the averments contained in his written suggestion concerning the location of the disputed boundary line'.

In Replication No. 5 plaintiff avers that 'he has been in possession of the strip of land described in Count A of his amended complaint for a consecutive and continuous period of more than ten years next preceding the filing of this suit of ejectment' and that 'his possession thereof during said period has been hostile under a bona fide claim of ownership, actual, open, notorious, exclusive, and continuous for said period of ten years under claim of right next preceding the filing of his suit in ejectment against the defendant in this cause.'

In Replication No. 6 he avers that he and his predecessors in title have been in continuous adverse possession of the strip of land sued for as described in Count A for a period of 20 years next preceding the filing of the suit in this cause.

In Replication No. 7 it is alleged that plaintiff's predecessors in title had been in adverse possession of the strip of land 'for a period of from 30 to 60 years next preceding the filing of his suit * * * in this cause.'

Amended Replication No. 8 is as follows:

'The plaintiff says and avers that heretofore--approximately 35 to 40 years ago--one Bailey McClellan, then being the official county surveyor for Calhoun County, Alabama, ran and surveyed the east and west division line between the NE 1/4 of the SE 1/4 and the SE 1/4 of the SE 1/4 of Section 22, Calhoun County, Alabama, that said survey and division line began on the east line of said quarter section on the north and south line between the NE 1/4 and the SE 1/4 at the point separating the SE 1/4 of the SE 1/4 and the NE 1/4 of the SE 1/4, said lands lying and being in Section 22, of Calhoun County, Alabama, at a point on said north and south line 1153 feet north of the SE corner of the SE 1/4 of Section 22, Township 13, Range 7, in Calhoun County, Alabama, as established by Lee survey of said 1/4 sections and extending thence west to the west line of the NS line of said 1/4 section from said beginning point a distance of 1,320 feet of equal width from the south line of the SE 1/4 of said Section 22, Township 13, Range 7. He avers that the true boundary line between the NE 1/4 of the SE 1/4 and the SE 1/4 of the SE 1/4 of said 1/4 Section the property of the P. and D. is above set out. He further avers that the coterminuous owners of the SE 1/4 of the SE 1/4 of [sic] the NE 1/4 of the SE 1/4 of said Section 22, Township 13, Range 7, as aforesaid, have at all times since said surveying acquiesced in and conceded the correctness thereof, and that he and his...