Robinson v. Hamilton

• Decision Date: 26 September 1986
• Parties: Henry Hollis ROBINSON and Sarah W. Robinson v. Ralph M. HAMILTON and Sybil I. Hamilton. 85-209.
• Court: Alabama Supreme Court

Page 8

496 So.2d 8

Henry Hollis ROBINSON and Sarah W. Robinson v. Ralph M. HAMILTON and Sybil I. Hamilton.

85-209.

Supreme Court of Alabama.

Sept. 26, 1986.

William R. Hovater of Stolsworth & Hovater, Tuscumbia, for appellants.

Murray Beasley, Tuscumbia, for appellees.

HOUSTON, Justice.

This is an appeal from a judgment in the Circuit Court of Colbert County determining a boundary line between coterminous landowners. We affirm.

The plaintiffs, Ralph and Sybil Hamilton have been next-door neighbors of the defendants, Henry and Sarah Robinson, for over 20 years. The defendants originally purchased a 3.56-acre tract from Sybil Hamilton's father and later sold the east half of that tract to the plaintiffs. An appendix to this opinion shows a plat of a survey, ordered by the trial court, which shows the common boundary between the parties in accordance with the description set out in the plaintiff's deed.

The defendants introduced testimony which tended to show the following: The iron rod shown on the plat was driven down by Sybil Hamilton's father in 1962 at the point where he thought the line separating the tracts was located. The defendants always believed that that iron rod marked the boundary between themselves and the plaintiffs. Consequently, the defendants planted four fruit trees and a portion of their summer garden over on the plaintiffs' property (see survey). Both the garden (when in season) and the fruit trees have been maintained by the defendants. The defendants also ran their underground septic tank field lines onto the plaintiffs' property at the time they built their house in 1962.

The plaintiffs' testimony tended to show that the boundary in dispute was, and had always been represented, as shown in the survey. Ralph Hamilton testified that he gave the defendants permission in 1962 to use a portion of his property for gardening and that he never withdrew it.

The defendants' sole contention is that they adversely possessed that strip of the plaintiffs' property extending up to the iron rod and thereby reestablished the common boundary.

The trial court's judgment, in pertinent part, reads as follows:

"This cause coming on to be heard on the Plaintiffs' Complaint, seeking the Order of the Court establishing and defining a true dividing line between the property owned by the Plaintiffs and the property owned by the Defendants, Answer of the Defendants and the Court having considered all of the pleadings in this case, and the court having made an on site inspection in this cause, as well as having considered all of the testimony and evidence presented in open Court, and based upon all of the foregoing the Court does find as follows:

"The Court does find that the defendants' gardening and cultivation of the Plaintiffs' property has been with the Plaintiffs' consent and permission, the Plaintiff, Ralph Hamilton, having testified that he originally gave said permission around 1962, and that he has never withdrawn said permission until such time in 1984 when the Defendant, Henry Hollis Robinson, initiated conversation with the said Plaintiff seeking to get the Plaintiffs' permission to get a survey in order to establish the true boundary line between the parties' properties.

"It is therefore FOUND by the Court that the Defendants' possession of the disputed strip of gardening does not meet the conditions set out in Sylvest v. Stowers, [276 Ala. 695, 166 So.2d 423 (1964) ], inasmuch as the Court finds that it is not exclusive, open and continuous for a period of ten (10) years, but rather was for a short period of time during each and every year with the permission of the Plaintiff.

"It is therefore, ORDERED, ADJUDGED and DECREED by the Court that the true line between the Plaintiffs' and the Defendants' property [is] hereby established to the line depicted as the boundary line in the survey made by S.K. Alexander on the 22nd day of March, 1985, and attached to this Decree [as] Exhibit 1. [That is the survey appearing as an appendix to this opinion.]"

The issue that we must determine is whether the judgment of the trial court establishing the survey line as the true boundary was contrary to the weight of the evidence and the law.

At this point, we should note that where a trial court has heard ore tenus testimony, as in this case, its judgment based upon that testimony is presumed correct and will be reversed only if, after consideration of the evidence and all reasonable inferences to be drawn therefrom, the judgment is found to be plainly and palpably wrong. Thompson v. Hartford Accident & Indemnity Co., 460 So.2d 1264 (Ala.1984). Furthermore, where a trial court does not make specific findings of fact concerning an issue, this Court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. Thomas v. Davis, 410 So.2d 889 (Ala.1982).

A boundary dispute is subject to a unique set of requirements that is a hybrid of the elements of adverse possession by prescription and statutory adverse possession. In such a dispute, coterminous landowners may alter the boundary line between their tracts by agreement plus possession for ten years or by adverse possession for ten years. Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616 (Ala.1980).

In Mardis v. Nichols, 393 So.2d 976 (Ala.1981), the Court stated:

"In Carpenter v. Huffman, 294 Ala. 189, 314 So.2d 65 (1975), Justice Jones summarized the applicability of our adverse possession statute, Code 1975, § 6-5-200, to boundary disputes, as follows:

" 'The three alternative prerequisites 1) deed or other color of title, 2) annual listing of land for taxation, or 3) title by descent [cast] or devise from a predecessor, therefore, are not necessary to sustain a claim to title by a coterminous owner. Lay v. Phillips, 276 Ala. 273, 161 So.2d 477 (1964); Sylvest v. Stowers, 276 Ala. 695, 166 So.2d 423 (1964). That is to say, although the claimant is relieved of these three alternative conditions prescribed by [ § 6-5-200], he may still acquire title by the...