Myers v. Owens

• Decision Date: 27 September 1973
• Citation: 291 Ala. 528,283 So.2d 420
• Parties: Minnie M. MYERS et al. v. William Franklin OWENS and Thomas Y. Owens. SC 306.
• Court: Alabama Supreme Court

Page 420

283 So.2d 420

291 Ala. 528

Minnie M. MYERS et al. v. William Franklin OWENS and Thomas Y. Owens.

SC 306.

Supreme Court of Alabama.

Sept. 27, 1973.

John S. Casey, Heflin, for appellants.

Knox, Jones, Woolf & Merrill, Anniston, for appellees.

PER CURIAM.

This is a boundary line dispute. Appellants, for convenience, will hereinafter be referred to as 'Myers,' and the appellees, hereinafter referred to as 'Owens,' were coterminous owners. Myers had paper title to the NW 1/4 of Section 20, Township 16, Range 11. Owens held a deed to the NE 1/4 of Section 19, Township 16, Range 11.

Owens filed a bill of complaint alleging that a dispute had arisen between the parties as to the true boundary line between their respective properties. The bill asked the court to determine the true boundary line. Owens contended that the government survey line was the boundary. Myers filed a cross bill and claimed that they and their predecessors in title had been in actual, open, exclusive, hostile and continuous possession of the disputed area which extended beyond the government section line, up to a tree line, field line and turnrow. The testimony in this case was taken ore tenus before the trial judge. He saw and heard the witnesses as they testified. There were exhibits introduced and some of the testimony made reference to points on these exhibits which points of reference are not before us, although the exhibits are.

This Court said in Dennison v. Claiborne, 289 Ala. 69, 265 So.2d 853 (1972):

"* * * the burden of showing actual, clear, definite, positive, notorious, open, continuous, adverse and exclusive possession of a definite tract under a claim of right for the time prescribed by law, and such possession is required to be shown by clear and convincing evidence. Turnipseed v. Moseley, 248 Ala. 340, 27 So.2d 483, 170 A.L.R. 882; Walthall v. Yohn, 252 Ala. 262, 40 So.2d 705.' Prestwood v. Hunt, 285 Ala. 525, 234 So.2d 545 (1970).

'It is almost platitudinous to restate our well established rule that,

'Where evidence is heard orally before the trial court, the finding of the court has the effect of a jury's verdict and will not be disturbed on appeal, unless plainly erroneous, whether in law or equity. And we must affirm the trial court's decree, if fairly supported by credible evidence under any reasonable aspect regardless of what might be our view of the evidence. Norton v. Norton, 280 Ala. 307, 193 So.2d 750; Great American Ins. Co. v. Railroad Furniture Salvage of Mobile, Inc., 276 Ala. 394, 162 So.2d 488; Dunlavy v. Dunlavy, 283 Ala. 303, 216 So.2d 281.' Patterson v. Brooks, 285 Ala. 349, 232 So.2d 598 (1970).

'* * * the findings and conclusions of fact made by a trial court, based on testimony taken ore tenus, are presumed to be correct, and such findings and conclusions carry with them the force of a jury verdict. Unless such findings and conclusions are plainly wrong or without supporting evidence, or are manifestly unjust * * * the final decree is due to be affirmed. Renfroe v. Weaver, 285 Ala. 1, 228 So.2d 764, and cases there cited . . .."

Without...