Murphree v. Swann

• Decision Date: 30 December 1976
• Citation: 342 So.2d 329
• Parties: Howard MURPHREE v. Lloyd A. SWANN and Dorothy Swann. SC 1926.
• Court: Alabama Supreme Court

Page 329

342 So.2d 329

Howard MURPHREE v. Lloyd A. SWANN and Dorothy Swann.

SC 1926.

Supreme Court of Alabama.

Dec. 30, 1976.

Rehearing Denied Feb. 25, 1977.

Thomas E. Snoddy, Double Springs, for appellant.

Walter Joe James, Jr. of James & Lowe, Haleyville, for appellee.

MADDOX, Justice.

This case involves a boundary line dispute and the question of adverse possession between coterminous landowners. Appellees (plaintiffs below), Lloyd and Dorothy Swann, brought this action, pursuant to Tit. 47, § 2, Code of Alabama 1940 (Recomp.1958), against appellant, Howard Murphree, to determine the boundary line between their properties. ¹ The disputed strip of land is approximately 100 feet in width between a government survey forty line and an old wire fence line. Appellee claims that the old fence line is the true boundary line. Appellant contends the true line is the government survey line, which is the line between the parties as set forth in their respective deeds.

The trial court, after hearing the evidence ore tenus, concluded that the boundary line was located at the old fence line. From this final judgment of the trial court, appellant brings this appeal. After a careful review of the evidence, we reverse and remand with directions.

Swann's title is based upon a deed dated September 25, 1970 to land described as follows:

'All that part of land bounded by Smith Reservoir and lying above the 510 foot contour line above mean sea level being (being) a parcel of land containing one acre more or less in S.W. Corner of NE 1/4 of SW 1/4 and 7 acres more or less lying East of East Sipsey Fork River in NE 1/4 of SW 1/4 all in Section 35 Township 11 Range 6 West.'

Murphree's title is based upon a deed which conveyed the SE 1/4 of NW 1/4 Section 35, Township 11, South of Range 6, West to him in 1956. The land is located in Winston County near Smith Lake.

Swann claims title to the disputed strip between the government survey line (the North line of the NW 1/4 of SW 1/4 of Section 35, and the South line of the SE 1/4 of NW 1/4 of Section 35) and the old fence line by virtue of adverse possession.

There is evidence in the record that the fence was erected in 'about 1925' by Murphree's father and one Stephenson, owner of the NE 1/4 of the SW 1/4. Murphree, the appellant, was a young boy then but said he remembered helping to put up the fence on 'what they thought was the 40 line.' Murphree testified that it was the intention of both parties to put the fence on the line.

There was much evidence that the successors in title of the Stephensons used the land up to the old fence. Murphree himself became one of those successors in title when he bought the NE 1/4 of the SE 1/4 in 1946. He owned it until November 10, 1955, when he conveyed it to one Elam and wife. Elam cut timber on the tract and conveyed to one Leigeber, and wife, on December 19, 1955. Leigeber's widow conveyed to Helen M. Cornish, as trustee for Leigeber heirs doing business as H.D.J. Land Company on March 10, 1958. Cornish, etc., d/b/a H.D.J. Land Company, conveyed the subject tract to the Swanns on September 25, 1970.

An agent for H.D.J. Land Company testified, without dispute, that the company did not intend to claim title to any land other than that shown by the deed. In this case, that would mean that the H.D.J. Land Company did not intend to claim title to the disputed strip.

Swann finds himself in the predicament the complainant faced in McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160 (1954). Swann has no title to the disputed strip because it is not within the description of his deed from H.D.J. Land Company, and he has not had adverse possession for the required period.

Swann testified that his immediate grantor did not show him where the land lines were located. Swann...