Powell v. Hopkins

• Decision Date: 11 May 1972
• Docket Number: 4 Div. 417
• Citation: 262 So.2d 289,288 Ala. 466
• Parties: Matthew W. POWELL v. J. C. HOPKINS and Martha W. Hopkins.
• Court: Alabama Supreme Court

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.

S. Fleetwood Carnley, Elba, for appellant.

Kelly & Knowles, Geneva, for appellees.

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 -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.

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 color of title recorded for ten years, or (2) an annual listing of the land for taxation in the proper court for ten years, or (3) title by descent cast or devise from a predecessor in title who was in possession of the land. Section 828, Title 7, Code of Alabama 1940; Lay v. Phillips, 276 Ala. 273, 161 So.2d 477.

But whether one claims by adverse possession or by prescription, a claimant must show dominion over the estate to the same degree under either mode of claim. Lay v. Phillips, supra.

To establish this dominion to the extent of divesting title out of a record title owner, proof to the required degree must show that occupancy by the claimant or his predecessors in title has been actual, clear, definite, notorious, continuous, adverse, and exclusive for the required period. Bell v. Pritchard, 273 Ala. 289, 139 So.2d 596.

The evidence presented by the respondent was to the effect that Ryals, his predecessor in title, and from whom he had purchased land bordering the three acres in 1960, had run stock through the area which included the three acres, and that he himself has done so; that the land is posted, and was posted, when he bought it; and that he and his predecessors had cut timber off the three acres.

There is not a scintilla of evidence that any of respondent's predecessors in title claimed ownership of the three acres. According to complainant's witnesses, the respondent, after acquiring the land bordering on the three acres, had placed 'posted' signs along the borders of his land, but all these signs Faced the three acres in question.

The three acres are described by various witnesses as being swamp land, undistinguishable from the surrounding land.

Occasional and intermittent acts of entry upon, and cutting timber from land which is largely woodland and swamp, are insufficient to establish the trespasser's dominion over such land, but such acts are regarded as mere transitory trespasses without legal right, and cannot defeat the right to the land of one in actual or constructive possession under color of title. Turnipseed v. Moseley, 248 Ala. 340, 27 So.2d 483. And where, as here, there has been no real occupancy of the land, no one having been in actual possession thereof, the possession is regarded as constructive and follows the chain of title. Bobo v. Edwards Realty Co., 250 Ala. 344, 34 So.2d 165; State ex rel., etc. v. Graham, 273 Ala. 634, 143 So.2d 810.

Under the evidence presented which we have read and considered with care, we are in accord with the Chancellor's conclusions and decree quieting title to the land in question in the complainants, and further decreeing that the respondent had no right, title, or interest in the land. No reversible error can be posited on assignments of error 1 and 2.

Assignments of error 3 and 4 assert error in the action of the court in decreeing that a right-of-way...