Parker v. Rhoades
| Decision Date | 16 December 2016 |
| Docket Number | 2150579. |
| Citation | 225 So.3d 642 |
| Parties | Walkanita H. PARKER, individually and as personal representative of the estate of William L. Parker, deceased v. Wesley Glen RHOADES and Peggy Rhoades |
| Court | Alabama Court of Civil Appeals |
R. Rainer Cotter III of Marsh & Cotter, LLP, Enterprise, for appellant.
Jodee R. Thompson, Enterprise, for appellees.
Walkanita H. Parker, individually and as personal representative of the estate of William L. Parker, deceased, appeals from a judgment of the Coffee Circuit Court ("the trial court") in favor of Wesley Glen Rhoades ("Glen") and Peggy Rhoades. We affirm the trial court's judgment.
This case involves a boundary-line dispute and was initiated when Walkanita H. Parker and William L. Parker ("Larry") filed a complaint against the Rhoadeses, who owned property to the south of the Parkers' property, on November 1, 2011. The Parkers sought, among other things, a judgment establishing the boundary line between the properties owned by the parties. The Parkers asserted, among other things, that a "stob" that had been accepted as the boundary line for over 20 years had been pulled up by Glen and that Glen had then claimed the property that lied north of the stob and south of the Parkers' property as designated by the Parkers' deed ("the disputed property"); the Parkers specifically asserted that they had acquired title to the disputed property by agreement or by adverse possession. The Rhoadeses filed an answer to the complaint on December 2, 2011, and asserted a counterclaim against the Parkers, pursuant to the Alabama Litigation Accountability Act, Ala. Code 1975, § 12–19–270 et seq. The Parkers filed a reply to the Rhoadeses' counterclaim. On May 9, 2012, a suggestion of death was filed, notifying the trial court that Larry had died on March 15, 2012. On September 17, 2012, Walkanita filed a motion seeking to substitute her, as the personal representative of Larry's estate, as a party for Larry; the trial court granted that motion on September 24, 2012, and Walkanita, in her capacity as personal representative of Larry's estate, was substituted as a party.
A bench trial was conducted on October 1, 2014, and, on November 9, 2015, the trial court entered a judgment, which included findings of fact and concluded that the boundary line between the parties' properties was as established in their respective deeds and that there was no evidence to establish adverse possession of the disputed property by the Parkers. The trial court denied all other requested relief. On December 8, 2015, Parker filed an objection to the trial court's findings and a motion to alter, amend, or vacate the judgment; that motion was denied by operation of law on March 7, 2016. See Rule 59.1, Ala. R. Civ. P. Parker timely filed a notice of appeal to the Alabama Supreme Court on March 10, 2016; that court transferred the appeal to this court, pursuant to Ala. Code 1975, § 12–2–7(6).
Glen testified that he purchased his property in 1983. He stated that, in 1984 or 1985, he had hired someone to have an old fence removed, which, he said, he had previously recognized as the boundary line between his property and the property owned by "Ms. Cain," who had owned the Parkers' property before it was sold to the Parkers in 1994. According to Glen, when he and Cain, who had contributed to the removal of the fence in part, had had the fence removed, they had failed to mark the boundary line between the two properties. Thus, Glen stated, he did not know where the boundary line was because it had not been demarcated, although, he said, he considered it to be within several feet of the property line as stated in the parties' deeds, in accordance with a survey he later had had performed. Glen testified that there had not been a concrete stob where the old fence had been located, but he testified that there was a "State right-of-way marker," which was also apparently made of concrete, that had been in the way of the bulldozer as the old fence was being removed, and that he had moved the marker, which had been approximately six or eight feet from the old fence line, to get it out of the way of the bulldozer. According to Glen, after the Parkers purchased the property from Cain in 1994, they had used the disputed property for ingress and egress to their property. Glen stated that he had also used the disputed property to enter his property, that he had never told the Parkers not to use the disputed property or that they were trespassing, and that he did not have a problem with them using the disputed property in such a manner. Although he admitted that he had never given the Parkers permission to use the disputed property, he testified that he had allowed them to use it. He testified that he had kept the disputed property "bush-hogged" or mowed and had kept a drainage ditch along the boundary line "dipped out" as well.
According to Glen, in 2008 or 2009, the stob, or marker, began getting run over by vehicles that used the disputed property and Larry had continued to replace the stob where it had been despite Glen's having told him that the stob did not have any relevance. Glen testified that he had told Larry that the stob did not indicate the boundary line between the properties but that, after the stob had continued to be displaced by vehicles, Larry had driven an iron rod into the ground where the stob had been, which, Glen said, he had later removed. Glen stated that the confusion regarding the boundary line and the stob's relation thereto had begun in 2009 or 2010, when Glen had removed the stob from the ground. According to Glen, at that time, Larry had claimed that the stob was the boundary line between the parties' properties. Glen testified that he and Larry had agreed to have the properties surveyed to determine the boundary line between the properties. He stated that he had had a survey performed in 2009 and that that survey revealed that the disputed property was a part of the Rhoadeses' property.
Tindell Adams, a professional land surveyor, testified that Glen had retained him to perform a survey regarding the boundary line between the Rhoadeses' property and the Parkers' property in July 2009. According to Adams, the boundary line between the two properties was in accordance with the boundary line set out in the Rhoadeses' deed. He stated that he had not located a concrete marker or evidence indicating that there had been one, although he indicated that a state right-of-way marker would have been placed to indicate the point where a curve of the right-of-way begins or ends and that, in the present case, the curve on the nearby State highway would begin further north or south of the disputed property. Adams also testified that he had lined up his boundary line on the survey with an old fence line and that, if the boundary line had been where the Parkers had indicated the concrete marker had been, the boundary line would have "had a kink to it vee'ing south" and that that would be unusual. He stated that the concrete marker would have disagreed with older evidence indicating the boundary line, which was in the woods and included the old fence line and would not have lined up with the concrete marker.
Larry Parker, Jr., testified that he had helped his father work the farm on the Parkers' property his entire life and that they had accessed the portion of their field that was next to the Rhoadeses' property by noting the placement of the concrete stob. Larry Jr. stated that the Parkers had regularly used the disputed property since 1994, that they had never asked permission to use it, and that nobody had ever told them to stop using it. He testified that he had also seen Glen using the disputed property since 1994, parking vehicles, planting, and using it for harvesting as the Parkers had, and, he said, the Parkers had never told Glen not to use the disputed property because they were being neighborly. Larry Jr. testified that the Parkers had considered the stob to be the boundary line between the parties' properties, that Larry had cautioned the rest of the family not to disturb the stob, and that the stob had vanished in 2011. Jeff Parker, Larry's brother, also testified that Larry had believed the disputed property was part of his property before he had died. Walkanita testified that Larry had maintained that the stob represented the boundary line between the parties' properties and that he had told her that he, Glen, and Cain had agreed that the stob represented the boundary line. Larry Jr. testified that the Parkers had had a survey performed and that their survey had included the disputed property in the Rhoadeses' property.
Jon Robert Chancey, a land surveyor, testified that he had performed a survey for Larry in 2011 and that he had come up with the same boundary line as Adams, in accordance with the deeds to the properties. Chancey testified that he had not seen a concrete marker or post or evidence of the same, and he agreed with Adams that a State right-of-way marker would not exist where the properties adjoined because that point is in the curve rather than the beginning or end of the curve. He testified, however, that, if he had used the boundary asserted by Larry, the point where the properties adjoined would have lined up more with the fence across the highway.
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