Rollan v. Posey

• Decision Date: 26 January 1961
• Docket Number: 3 Div. 838
• Parties: W. J. ROLLAN et al. v. Moody S. POSEY et ux.
• Court: Alabama Supreme Court

Page 464

126 So.2d 464

271 Ala. 640

W. J. ROLLAN et al. v. Moody S. POSEY et ux.

3 Div. 838.

Supreme Court of Alabama.

Jan. 26, 1961.

Taylor & Newby, Prattville, Omar L. Reynolds, and Reynolds, & Reynolds, Clanton, for appellants.

Gipson & Bridges, Prattville, for appellees.

COLEMAN, Justice.

This is an appeal from a final decree of the circuit court, in equity, establishing a boundary line.

Complainants' land lies on the north side and respondents' land on the south side of the disputed line. Under a deed to respondent W. J. Rollan, the respondents claim the southeast quarter of the northeast quarter of Section 12, Township 17, Range 15 East, in Autauga County. The respondents claim that the true boundary between the lands of the parties is the north boundary line of that forty acres.

Autauga Creek flows along a meandering course from west to east across the north end of said forty acres. Complainants have a deed to the Booth Place. The deed describes the Booth Place by courses and distances and the boundary at one instance is described as '* * * thence south 40 degrees west 2.00 chains to Autauga Creek, thence up Autauga Creek to a point where Breakfast Creek runs into Autauga Creek * * *.' Complainants claim that the true boundary is 'the thread or center of Autauga Creek.' Both parties lay claim to the land lying between the north boundary of said forty acres and Autauga Creek, and both parties have a deed to the disputed strip.

The court heard testimony ore tenus and established the line as claimed by complainants. Respondents have appealed.

Respondents contend that the court erred in establishing the line as aforesaid; in admitting in evidence an affidavit dated November 5, 1951, which affirms that complainants have been in adverse possession of the Booth Place for 35 years; and in rendering a final decree in the absence of a necessary party, namely, The Federal Land Bank of New Orleans, the mortgagee in a mortgage covering the land of complainants which mortgage is admittedly outstanding and unpaid.

1. Respondents state in brief that because complainants' deed recites that the boundary runs 'to Autauga Creek,' the court could not 'find upon any theory that the center of Autauga Creek is the true boundary line.'

We do not agree. The line is described in complainants' deed as running 'to Autauga Creek, thence up Autauga Creek to a point,' etc. We consider Autauga Creek as nonnavigable because, being above tidewater, it is, prima facie, not a navigable stream, Rhodes v. Otis, 33 Ala. 578; Olive v. State, 86 Ala. 88, 5 So. 653, 4 L.R.A. 33; Morrison Brothers & Co. v. Coleman, 87 Ala. 655, 6 So. 374, 5 L.R.A. 384. There is neither evidence nor contention that it is navigable. Briefly the law is that adjoining proprietors of land having a nonnavigable stream as a boundary line between them take each to the middle or thread of the stream. Bullock v. Wilson, 2 Port. 436; Greenfield v. Powell, 218 Ala. 397, 118 So. 556. The language of a deed was: 'Thence south to the Arkansas river; thence up said river to where it is intersected by the south line of the town.' The court held that where, as in that deed, a nonnavigable river is named as a monument, the grant extends to its center, and the thread of the stream is the true boundary. Hanlon v. Hobson, 24 Colo. 284, 51 P. 433, 435, 42 L.R.A. 502, 513. The presumption that the line between owners bordering on a nonnavigable stream is the thread of the stream is based on the assumption that the grantor who conveyed the land bordering the stream intended that the boundary of the lands of the grantee should extend to the thread of the stream. 8 Am.Jur. 761, Boundaries, § 22. This presumption, founded upon the assumed intent of the parties, has now become a rule of property. If the grantor desires to retain his title to the land underneath the water, the presumption must be negatived by express words or such description as clearly excludes it from the land conveyed. Stewart v. Turney, 237 N.Y. 117, 142 N.E. 437, 31 A.L.R. 960. The words in complainants' deed in the instant case certainly do not exclude the land under the water. If Autauga Creek is the correct boundary line between the lands of the instant parties, and we think it is the correct line, then the court was not in error in establishing the thread of the stream as the boundary line.

2. Respondent W. J. Rollan claims title to SE 1/4 of NE 1/4 of said Section 12 by a deed from Metropolitan Life Insurance Company, a corporation, dated November 10, 1937. The other respondents claim title to their respective parcels of said forty acres by deeds from W. J. Rollan. Rollan placed in evidence deeds showing a chain of conveyances ending in him in 1937 as aforesaid and commencing with a deed executed by A. Y. Smith dated November 29, 1900. Complainants claim title to the Booth Place by a deed from Myra Booth Murphree, Alice Booth Wilkinson, and their respective spouses, dated January 20, 1945. The description of the Booth Place in deed to complainants includes that portion of SE 1/4 of NE 1/4 of said Section 12 lying between Autauga Creek and the north boundary line of said forty acres. The deeds placed in evidence show a chain of conveyances to complainants ending in them in 1945 as aforesaid and commencing with two deeds from Daniel B. Booth to his wife, both dated January 5, 1916.

Respondents (appellants) argue that 'appellants' record title to the disputed strip antedates that of the appellees for a period of some sixteen years,' and, therefore, because there is 'a conflict in the survey or an overlapping in the lands conveyed that the elder survey and the elder grant will control,' citing Snodgrass v. Snodgrass, 212 Ala. 74, 101 So. 837; Adams v. Wilson, 137 Ala. 632, 34 So. 831; Dunn v. Stratton et al., 160 Miss. 1, 133 So. 140; 11 C.J.S. Boundaries §§ 60-61, pp. 632-633.

There is only one survey in the record. There is no conflicting survey. There is an overlapping in the descriptions in the deeds in that the descriptions in the deeds of both parties include the disputed strip of land. We do not understand, however, that either party has proved ownership of the record title because neither traces title from the United States or other sovereign. We do not think the evidence will support a finding that respondents proved anywhere a conveyance from a grantor in possession. It is held in Dunn v. Stratton, supra, that the elder of two deeds from a common grantor will prevail, but in the instant case the two chains of conveyances do not emanate from a common grantor. We have not been cited to nor do we know of any case which holds that a claim of title is superior to another merely because the first claim rests on a deed at the end of a chain of conveyances which commences with a deed from a private person, bearing an earlier date than the deed from a different private person with which the second chain of conveyances commences. Appellants' argument based on the fact that the first deed in their chain is dated 1900 while the first deed in appellees' chain is dated 1916 is without merit. Appellants have not shown a superior title to the disputed strip by their chain of conveyances commencing in 1900 as aforesaid.

3. In 1954, respondent W. J. Rollan employed a surveyor and subdivided the SE 1/4 of NE 1/4 of said Section 12 into a number of lots bordering on the highway which runs across it from northwest to southeast. The map showing the platting of the lots is in the record. The surveyor placed markers at the northeast and northwest corners of the forty and some time after the survey, W. J. Rollan erected a two-strand barbed wire fence between the two corners. The disputed land lies between the fence and the Creek. It is low, swampy land, is not in cultivation, and has no improvements on it other than the fence. The fence is nailed to a tree at least in part.

The testimony for complainants tended to show that the Booth Place had been in possession of Daniel Booth who lived on it as far back as 1900; that his occupancy extended to the creek; that he cut firewood on the disputed strip; that his children used a swimming hole in the creek bordering the disputed strip; that no person went to the swimming hole except by invitation of the Booths; that complainants' immediate grantors were daughters of Daniel Booth and inherited the land under the will of their mother who died in 1931; that the Booth Place was conveyed to complainants by their aforesaid grantors in 1945; that complainants went into possession and within one or two years after 1945 ran fences from the creek so as to enclose the disputed strip in their pasture and to use the creek as one side of their pasture; that they sold the timber off the entire place, including the disputed strip, in 1947 and the purchaser cut the timber, although respondent W. J. Rollan objected; that complainants have had cattle in the pasture which included the disputed strip for 6 or 7 years; that complainants posted 'no trespassing notices' the first year after they bought the land; and that complainants knew nothing of the fence erected by W. J. Rollan until after he had built it.

W. J. Rollan, when...