Moss v. Woodrow Reynolds and Son Timber Co., Inc.

• Decision Date: 24 January 1992
• Parties: Edgar MOSS v. WOODROW REYNOLDS AND SON TIMBER COMPANY, INC. 1900980.
• Court: Alabama Supreme Court

Page 1029

592 So.2d 1029

Edgar MOSS v. WOODROW REYNOLDS AND SON TIMBER COMPANY, INC.

1900980.

Supreme Court of Alabama.

Jan. 24, 1992.

Edward Massey of Clay, Massey & Gale, Mobile, for appellant.

S.J. Laurie, Chatom, for appellee.

KENNEDY, Justice.

This case between coterminous landowners involves a claim of adverse possession. We affirm.

The issue is whether the evidence was sufficient to support a finding that Edgar Moss, the defendant, satisfied the elements of adverse possession necessary to acquire title to a disputed 20-acre tract of land.

Woodrow Reynolds and Son Timber Company, Inc. ("Reynolds"), acquired, by deed, title to the disputed 20-acre parcel of land from Ellis Jordan. This property is described by deed as:

"E 1/2 of SE 1/4 of NW 1/4, Section 14, Township 6 North, Range 3 West, Washington County, Alabama containing 20 acres, more or less."

On January 1, 1989, an action was initiated against Edgar Moss to determine the ownership of this 20-acre parcel. Reynolds later intervened as a real party in interest. The evidence in this case indicates that Mr. Jordan had been in the habit of allowing others to use his land and that he had previously given Moss permission to graze his cows on the disputed 20 acres. In 1956, Moss was given permission, by Jordan, to fence approximately 13 acres of the disputed parcel. Numerous witnesses testified that, to their knowledge, the land belonged to Jordan and that they had had no knowledge of any claim to the land by Moss until after Jordan's death in 1984.

After Jordan's death, his property was surveyed and marked by Fletcher Schell. Moss never challenged Schell's right to survey and mark the property on behalf of the Jordan estate and made no mention to Schell of any claim he had to the property. Furthermore, Moss and his sons entered into hunting leases with Reynolds's predecessors for lands including the disputed acreage, during the time period of 1984-1988.

The jury returned a verdict for Reynolds, and the trial court denied Moss's motion for a judgment notwithstanding the verdict or, in the alternative, a new trial.

Adverse possession between coterminous landowners requires open, notorious, hostile, continuous, and exclusive possession for only 10 years. Hodge v. Snider, 495 So.2d 539, 540 (Ala.1986), quoting Tidwell v. Strickler, 457 So.2d 365 (Ala.1984).

"[T]here are basically two types of adverse possession; statutory adverse possession, and adverse possession by prescription. Both require the common elements of actual, exclusive, open, notorious, and hostile possession under a claim of right, but the statutory version, which requires possession for only ten years rather than the twenty years required by the prescription version, also requires that the possessor hold under color of title, have paid taxes on the property for ten years, or have derived his title by descent or devise."

Tidwell v. Strickler, 457 So.2d 365, 368 (Ala.1984).

We have previously set out the standard of review applicable in cases involving claims of adverse possession presented by ore tenus evidence:

" 'When evidence is presented ore tenus in a boundary line dispute, the trial court's judgment establishing the boundary is presumed correct and need only be supported by credible evidence. Hodge v. Snider, 495 So.2d 539 (Ala.1986). The ore tenus rule, which on appeal accords a presumption of correctness to a trial court's findings, is particularly strong in boundary line disputes and adverse possession cases....' "

Sashinger v. Wynn, 571 So.2d 1065, 1066 (Ala.1990), quoting Bell v. Jackson, 530 So.2d 42, 44 (Ala.1988).

In the trial of an adverse possession claim, witnesses often refer to maps, making gestures and implications that the trial record is unable to reflect. See Gunn v. Mickle, 501 So.2d 466, 467 (Ala.1986), and Pinson v. Veach, 388 So.2d 964, 968 (Ala.1980). Therefore, because the appellate court has only the trial record to reflect the testimony that was given at trial, the discretion of the trial judge must be heavily relied upon.

There is no dispute that record title to the land is with Reynolds and that Moss has used the disputed parcel since around 1956. The question presented is whether Moss's possession ripened into ownership. In order to acquire the 20 acres by adverse possession, Moss had the burden of proving that his possession was actual, exclusive, open, notorious, and hostile for at least 10 years.

Generally, possession of land entered into with permission of the...