Prestwood v. Gilbreath

• Decision Date: 27 November 1974
• Citation: 304 So.2d 175,293 Ala. 379
• Parties: Richard PRESTWOOD v. Truman GILBREATH. SC 693.
• Court: Alabama Supreme Court

Page 175

304 So.2d 175

293 Ala. 379

Richard PRESTWOOD v. Truman GILBREATH.

SC 693.

Supreme Court of Alabama.

Nov. 27, 1974.

Loma B. Beaty, Fort Payne, for appellant.

Beck & Beck, Fort Payne, for appellee.

BLOODWORTH, Justice.

Appellant Prestwood (respondent below) has appealed from a final decree determining the disputed boundary line between his property and that of appellee Gilbreath (complainant below). After a careful review of the evidence, we affirm.

The suit was commenced by Richard Prestwood on March 15, 1962, as an action in the nature of ejectment against Truman Gilbreath. On motion of Gilbreath, the proceedings were transferred to equity and, on March 6, 1963, Gilbreath filed a bill of complaint against Prestwood to establish the true boundary line between their respective properties. All the evidence was taken by deposition. The cause was not submitted to the trial court until May, 1973. It was submitted in this Court October 16, 1974, after oral argument.

The controversy arises out of the vague nd inconsistent descriptions contained in the deeds of the parties. The deed of appellee Gilbreath (complainant below) conveys, inter alia:

'The West half of the Northwest Quarter of Section Fourteen (14), Township Six (6), Range Nine (9) East, and Thirty Seven (37) acres, more or less, of the Northeast quarter of the Northwest quarter of Section Fourteen (14), Township Six (6), Range Nine (9) East, and about Three (3) acres, more or less, of the Southwest Quarter of the Southwest Quarter of Section Eleven (11), Township Six (6), Range Nine (9) East, the North boundary line of the lands herein conveyed being that certain fence erected by T. H. Carroll and Frank Allen and as it now stands on said land; . . ..'

The deed of appellant Prestwood (respondent below) conveys, inter alia:

'The W 1/2 of the SE 1/4; the E 1/2 of the SW 1/4; the SW 1/4 of the SW 1/4, except a small part of Wills Creek, and 20 acres of the NW 1/4 of the SW 1/4 bounded on the West by Wills Creek, all in Section 11 Township 6 South of Range 9 East. Also 23 acres of the NE 1/4 of the NW 1/4 and the NW 1/4 of the NW 1/4 of Section 14, Township 6 South of Range 9 East and bounded on the South by lands of Taylor Carroll, the fence being the line, . . ..'

Thus, Gilbreath's deed calls for three acres in Prestwood's southwest forty in Section 11, and Prestwood's deed calls for 23 acres in Gilbreath's two forties in Section 14. Both deeds say the Carroll-Allen fence is the boundary line.

The following sketch may be of aid to the reader in understanding the issues on this appeal.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In his bill of complaint, appellee Gilbreath alleges a dispute exists between the parties as to the location of the old Carroll-Allen fence and seeks the court's determination as to its location. By an amendment, Gilbreath alleges the true boundary line to be a certain fence erected by his father in 1951, to which line he and his father have claimed by adverse possession for more than ten years.

The cause was submitted to the trial judge upon the depositions of numerous witnesses, exhibits, the report of a court-appointed surveyor and the parties' muniments of title.

The first issue decided by the trial court was Gilbreath's claim of adverse possession to the fence erected by his father. Gilbreath bases this claim on the maintenance of the fence built by his father along the line he believed to be the boundary. This fence was apparently commenced in early 1951 and was completed in the spring of 1951. Prestwood's original complaint in ejectment against Gilbreath was not filed until March 15, 1962, more than ten years later.

The trial judge held, inter alia:

'* * * Taking all of the testimony into consideration, that offered by the complainant and that offered by the Respondent, this court is of the opinion that, at most, a scrambled or intermittent possession is shown and that the court must look to the respective muniments of titles to determine where the boundary line between the lands of complainant and respondent should be established.'

In this finding we think the trial court erred.

The second issue considered by the trial court was the true location of the original fence between the Allen lands (now owned by Prestwood) and the Carroll lands (now owned by Gilbreath).

The evidence offered by Gilbreath tended to show that the Carroll-Allen fence was a wooden, rail fence which ran along the line of a fence erected by Gilbreath's father in 1951. However, the rail fence was completely destroyed by fire many years ago and no trace of it can be found.

On the other hand, the evidence presented by Prestwood tended to show that the old fence was a 'page' wire fence located considerably south of the fence erected by Gilbreath's father and running in a more northwesterly, southeasterly direction. Vestiges of an old fence were found in this general area and its bearing and distance plotted by the court-appointed surveyor.

In rebuttal, Gilbreath presented evidence that the 'page' wire fence was erected by the 'Hesters boys' (tenants of Gilbreath's predecessor) as a stock fence and was neither intended as a line fence nor erected on the line of the old Carrol-Allen fence.

The trial court found that the Carroll-Allen fence could not be located with any degree of certainty and, therefore, determined that the boundary line should be fixed in accordance with the acreage descriptions in the deeds.

From examining the chain of title of both parties, the trial court concluded that the record titles of the parties came from a common source, one Z. T. Allman, who until 1880 owned both the Prestwood and Gilbreath tracts. In 1880 Allman conveyed the following described parcel to Gilbreath's predecessor:

'W 1/2 NW 1/4, Sec. 14, T. 6, R. 9, And 37 acres more or less of the NE 1/4 of NW 1/4 of Sec. 14, T. 6, R. 9, and about three acres more or less of the SW 1/4 SW 1/4, Sec. 11, T. 6, R. 9, this north boundary line being situated as indicated by the fence as it now stands on the land.' (Emphasis supplied.)

In 1887 Allman conveyed to Prestwood's predecessor the adjoining parcel, the description of which included the following:

'. . . Also the SW 1/4 of the SW 1/4 of Section 11, Township 6, Range 9, except a small portion west of Wills Creek, . . . and also twenty three acres, more or less, of the NE 1/4 and the NW 1/4 Of the NW 1/4 Of Section 14, Township 6, Range 9, being bounded on the south by lands of Taylor Carroll the fence now being on said line . . ..' (Emphasis supplied.)

These same descriptions continued in the parties' chain of title and appear virtually unchanged in the present deeds.

Each of the quarter-quarter sections involved is practically a full forty. Thus, without the existence, in fact, of the established Carroll-Allen fence, the 1887 deed purports to convey to Prestwood's predecessor in title part of the same lands already conveyed to Gilbreath's predecessor in title. The trial judge held that Gilbreath had the older and thus superior title and was therefore entitled to have the line fixed in accordance with the acreage description in his deed. Consequently, the boundary was fixed as a diagonal line running across the NE 1/4 of the NW 1/4 of Sec. 14, intersecting the NW corner of that quarter-quarter section and continuing across the SW 1/4 of SW 1/4 of Sec. 11 to the north south section line, so that the line carves out a three-acre parcel north of said line in the NE 1/4 of the NW 1/4 of Sec. 14 and a three-acre parcel south of said line in the SW 1/4 of the SW 1/4 of Sec. 11.

By coincidence this line followed almost exactly the line of the fence erected in 1951 by Gilbreath's father. However, the Gilbreath fence as plotted by the surveyor also encroached some ten or fifteen feet on the SE 1/4 of the SW 1/4 of Sec. 11, none of which is described in Gilbreath's deed. Therefore, the court ordered the fence to be moved slightly southward at the center (at the section line) to conform to the afore-mentioned line and decreed that the court-appointed surveyor place, and mark as such, three judicial landmarks at the beginning, middle and end points of the boundary.

Appellant Prestwood's assignments of error charge, in essence, that the trial court erred in failing to declare the old fence found by the court-appointed surveyor to be the Carroll-Allen boundary fence and that he erred in fixing the boundary line as he did, according to the acreage description in Gilbreath's deed.

As already mentioned, this cause was submitted entirely on written depositions, documentary evidence, and the report of a court-appointed surveyor. There was no testimony taken ore tenus. When such is the case, no weight will be given the decision of the trial judge upon the facts, but this Court must review the evidence De novo and render such judgment as it deems just. Wade v. Miller, 208 Ala. 264, 93 So. 905 (1922); Fannin v. Trotter, 215 Ala. 17, 109 So. 102 (1926); Porter v. Roberson, 263 Ala. 294, 82 So.2d 244 (1955); Muscogee Const. Co. v. Peoples Bank & Trust Co., 286 Ala. 258, 238 So.2d 883 (1970).

We have been greatly handicapped in our view of the depositions in this case (as we assume was also the trial judge) by frequent references by witnesses such as: 'along in there some place' . . . 'down this way some' . . . 'the line running through here' . . . 'through the hollow here' . . . 'up to this spot here' . . . 'back out over here' . . . 'the edge of the field there' . . . 'it run along through there sommers . . .' It is impossible to understand such references. Since the evidence was not heard orally by the trial court and we do not have the presumptions favoring his findings, we...