Powell v. Hopkins, 4 Div. 417

CourtSupreme Court of Alabama
Writing for the CourtHARWOOD; The record shows that the complainant; At the time Mrs. Burkett was permitted to testify as to the contents of the deed, no showing had been made as to the loss of the deed, and in this aspect the testimony was at the time inadmissible. Neve
Citation262 So.2d 289,288 Ala. 466
PartiesMatthew W. POWELL v. J. C. HOPKINS and Martha W. Hopkins.
Docket Number4 Div. 417
Decision Date11 May 1972

Page 289

262 So.2d 289
288 Ala. 466
Matthew W. POWELL
v.
J. C. HOPKINS and Martha W. Hopkins.
4 Div. 417.
Supreme Court of Alabama.
May 11, 1972.

[288 Ala. 468]

Page 291

S. Fleetwood Carnley, Elba, for appellant.

Kelly & Knowles, Geneva, for appellees.

[288 Ala. 469] HARWOOD, Justice.

The appellees here were the complainants in the proceedings below. They filed a bill in the Circuit Court, in Equity, to quiet title to three acres of land in Geneva County, said land being described as, 'All of the NW 1/4 of the NE 1/4 East of Pea River in Section 1, Township 1, Range 19 West.' The bill avers on information and belief that the respondent Matthew W. Powell claims some right or interest in the described land; that no suit is pending to enforce or test Powell's claim, and the complainants called upon the respondent to set forth and show his claim or interest in the described land.

The bill further avers that a right-of-way easement to the three acres crossed certain described land owned by the respondent Powell, and that in the latter part of 1964, Powell erected a gate or fence across the right-of-way easement, the gate being kept locked from the time of its erection to the date of the filing of the bill, and respondent has refused to permit the complainants the use of the right-of-way easement for ingress or egress to their three acres, which they aver have been in the possession of themselves or their predecessors for over thirty years. The complainants further averred that during all this time use of the right-of-way easement has been continuous, open, adverse, peaceable, etc., with full knowledge of the respondent.

The bill prayed that after hearing the court enter an order decreeing that the respondent has no title, right, or interest in the three acres, and that upon final hearing the court perpetually enjoin the respondent from maintaining the gate across the right-of-way easement and from interfering with complainants' right to ingress and egress to and from their property in any manner.

The respondent filed his answer to the bill in which he asserted that he and his predecessors in title have been in possession of the three acres in question for over thirty years, paying taxes thereon, using the same as a pasture, and cutting and removing timber thereon since 1911, and respondent claimed the three acres by adverse possession and by prescription.

The answer further avers that the three acres have been enclosed by a fence and posted by respondent or his predecessors for more than twenty years.

The answer further denies that complainants or their predecessors in title have been in open, continuous, peaceable, etc., possession of the three acres for more than thirty years.

As to the gate or fence erected across the alleged right-of-way easement, the answer asserts the barrier had been there for over twenty years, having been erected by J. C. Hopkins and kept locked until subsequent to the time respondent acquired title to the three acres, and that respondent had only repaired the gate that had been there.

A hearing was held and the lower court entered a decree holding that the complainants were owners in fee simple of the three acres in question, and that the respondent had no right, title, or interest therein. The court further found and decreed that the complainants had an easement for a right[288 Ala. 470] -of-way to the three acres across respondent's land, and that such easement had existed for over thirty years.

The respondent filed an application for a rehearing, one of the grounds of the application being that if same were not granted the respondent would be denied a right of appeal in that the court reporter had died and his notes could not be established.

Page 292

The court set aside the decree theretofore entered pending another hearing on the merits.

Prior to the second hearing on the merits, the bill of complaint was amended to show that after the commencement of this suit the respondent cut and removed all merchantable timber on the three acres in question, and that said timber so cut was of the value of $600.00, and complainants prayed that the court determine the value of the timber cut and award damages to the complainants therefor.

At the second hearing on the merits a number of witnesses were presented by each side. We see no useful purpose to be served in setting out the testimony of the witnesses. Essentially a question of fact was presented to be resolved by the trier of fact.

Upon completion of the second hearing the Chancellor entered a decree the same as the first decree but with an additional provision awarding the complainants $600.00 as damages for timber removed by the respondent from the three acres.

The respondent perfected this appeal from said decrees. For clarity, however, we will refer to the parties as complainants and respondent in this opinion.

Assignment of error 1 asserts that the court erred in decreeing that the complainants are the owners in fee simple of the three acres in question, while assignment of error 2 asserts that the court erred in decreeing that the respondent had no right, title, or interest in said three acres. These assignments may appropriately be considered together.

The record shows that the complainant, J. C. Hopkins, purchased the three acres here involved from his father and mother, H. C. and Eula Hopkins, by warranty deed dated 21 August 1934. This deed was recorded in the office of the Judge of Probate of Geneva County, Alabama, on 21 August 1934.

On 30 August 1962, the three acres were conveyed by J. C. Hopkins and his wife, Martha W. Hopkins, to themselves jointly for life, the remainder to the survivor. This warranty deed was likewise recorded in the Probate Office in Geneva County.

J. C. Hopkins has paid taxes on this land since his purchase of it in 1934.

On the other hand, none of the deeds introduced by the respondent include the three acres in the description of the land conveyed in said deeds, other than a quit claim deed from three heirs of D. W. Burkett, said quit claim deed being dated 10 December 1964, conveying a 2/12 interest in the three acres. The significance of the quit claim deed from the Burkett heirs is that Mrs. D. W. Burkett testified, over objections of the respondent, that she and D. W. Burkett had conveyed the three acres to H. C. Hopkins in 1918. Thus, if Mrs. Burkett's testimony was properly admitted, a point raised by assignments of error 7 and 8, and considered hereinafter, the complainants, or their predecessors, have held this three acres under record title, or under color of title, at least since 1918, and for a considerably longer period under the claim of title from the predecessors in title of Burkett.

Respondent claims a right to the land by both adverse possession and prescription.

We can lay aside respondent's claim of acquisition of any right to the three acres by adverse possession in that except for the quit claim deed acquired in 1964, respondent has met none of the three alternatives necessary if he is to successfully maintain his claim of adverse possession. These alternatives are, (1) a deed or other [288 Ala. 471] color of title recorded for...

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36 practice notes
  • C.B.D. v. State, CR-10-0640
    • United States
    • Alabama Court of Criminal Appeals
    • October 4, 2011
    ...is shown is largely a matter of judicial discretion and need only be proven to the trial court's reasonable satisfaction. Powell v. State, 288 Ala. 466, 262 So. 2d 289 (1972); C. Gamble, McElroy's Alabama Evidence, § 214.01 (3d ed. 1977). Because direct proof of loss is normally not availab......
  • C.B.D. v. State, CR-10-0640
    • United States
    • Alabama Court of Criminal Appeals
    • December 16, 2011
    ...is shown is largely a matter of judicial discretion and need only be proven to the trial court's reasonable satisfaction. Powell v. State, 288 Ala. 466, 262 So. 2d 289 (1972); C. Gamble, McElroy's Alabama Evidence, § 214.01 (3d ed. 1977). Because direct proof of loss is normally not availab......
  • C.B.D. v. State, CR–10–0640.
    • United States
    • Alabama Court of Criminal Appeals
    • February 10, 2012
    ...is largely a matter of judicial discretion and need only be proven to the trial court's reasonable satisfaction. Powell v. [ Hopkins ], 288 Ala. 466, 262 So.2d 289 (1972); C. Gamble, McElroy's Alabama Evidence, § 214.01 (3d ed.1977). Because direct proof of loss is normally not available, i......
  • Watson v. Price
    • United States
    • Supreme Court of Alabama
    • March 3, 1978
    ...any or all periods sought to be tacked in the same manner as if tacking were not involved. Tit. 7, § 828, Code; Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972); and Montgomery v. Spears, 218 Ala. 160, 117 So. 753 (1928). Likewise, we are not to be understood as affecting the long-stan......
  • Request a trial to view additional results
36 cases
  • C.B.D. v. State, CR-10-0640
    • United States
    • Alabama Court of Criminal Appeals
    • October 4, 2011
    ...is shown is largely a matter of judicial discretion and need only be proven to the trial court's reasonable satisfaction. Powell v. State, 288 Ala. 466, 262 So. 2d 289 (1972); C. Gamble, McElroy's Alabama Evidence, § 214.01 (3d ed. 1977). Because direct proof of loss is normally not availab......
  • C.B.D. v. State, CR-10-0640
    • United States
    • Alabama Court of Criminal Appeals
    • December 16, 2011
    ...is shown is largely a matter of judicial discretion and need only be proven to the trial court's reasonable satisfaction. Powell v. State, 288 Ala. 466, 262 So. 2d 289 (1972); C. Gamble, McElroy's Alabama Evidence, § 214.01 (3d ed. 1977). Because direct proof of loss is normally not availab......
  • C.B.D. v. State, CR–10–0640.
    • United States
    • Alabama Court of Criminal Appeals
    • February 10, 2012
    ...is largely a matter of judicial discretion and need only be proven to the trial court's reasonable satisfaction. Powell v. [ Hopkins ], 288 Ala. 466, 262 So.2d 289 (1972); C. Gamble, McElroy's Alabama Evidence, § 214.01 (3d ed.1977). Because direct proof of loss is normally not available, i......
  • Watson v. Price
    • United States
    • Supreme Court of Alabama
    • March 3, 1978
    ...any or all periods sought to be tacked in the same manner as if tacking were not involved. Tit. 7, § 828, Code; Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972); and Montgomery v. Spears, 218 Ala. 160, 117 So. 753 (1928). Likewise, we are not to be understood as affecting the long-stan......
  • Request a trial to view additional results

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