Sandlin v. Sanders

• Decision Date: 23 June 1978
• Citation: 360 So.2d 977
• Parties: Thomas Harold SANDLIN v. Willis A. SANDERS et al. SC 2625.
• Court: Alabama Supreme Court

Page 977

360 So.2d 977

Thomas Harold SANDLIN v. Willis A. SANDERS et al.

SC 2625.

Supreme Court of Alabama.

June 23, 1978.

Thomas E. Ellis, Birmingham, for appellant.

Bishop K. Walker, Jr., of Nash & Walker, Oneonta, for appellees.

FAULKNER, Justice.

Sanders and Woolsteen brought an action pursuant to § 35-3-1, Code of Alabama 1975, in the Circuit Court of Blount County to determine the boundary between themselves and Sandlin as coterminous land owners. Their complaint asserted ownership up to the center of a dirt road, allegedly a public road, either by deed description or by adverse possession for 20 years. Sandlin filed an answer and counterclaim alleging the dirt road to be a private road lying wholly within his property.

The dispute over the proper location of the common boundary arose when Sanders and Woolsteen attempted to cut driveways from the road to the lot owned by the Woolsteens. Sandlin and his father objected. They placed logs across the driveways and erected a gate across the dirt road. The trial court held the common boundaries of the parties to be the center of the dirt road, declared the dirt road a public road and enjoined Sandlin from obstructing the road. Sandlin appeals from the judgment. We affirm.

Sanders acquired title to the NW 1/4 of the SE 1/4 of Section 31, Township 13 South, Range 3 West by a 1947 deed from his father, with the following description:

"Beginning at the NW Corner of NW 1/4 of SE 1/4 of Section 31 Township 13 Range 3 West and running East 810 feet thence a South Westernly direction along center of road 1013 feet to the west Boundary line of NW 1/4 of SE 1/4 thence North 679 feet to point of Beginning."

In 1975 Sanders and his wife executed a deed to themselves transferring the same property to a joint tenancy with the right of survivorship, describing the property as follows:

"A part of the NW 1/4 of the SE 1/4 of Section 31, Township 13 South, Range 3 West, Blount County, Alabama, more particularly described as follows: Begin at the NW corner of said NW 1/4 of the SE 1/4 thence South 0o 48' 49"' East, 350 feet; thence North 89o 33' 11"' East, 140 feet; thence North 0o 48' 49"' West, 140 feet to the beginning. Containing 1.12 acres, more or less.

"Also: A part of the NW 1/4 of the SE 1/4 of Section 31, Township 13 South, Range 3 West, Blount County, Alabama, more particularly described as follows: From the NW corner of said NW 1/4 of the SW 1/4; thence South 0o 48' 49"' East, 350 feet to point of beginning; thence continue South 0o 48' 49"' East, 328 feet; thence North 49o 27' 11"' East, 1053.27 feet; thence South 89o 33' 11"' West, 280 feet to the point of beginning. Containing 4.06 acres, more or less."

In that same year, the Sanders also conveyed a portion of the land to their daughter and son-in-law, the Woolsteens.

Sandlin acquired title to the following property by deed from his parents in 1967:

"The Southwest fourth of Northeast fourth of Section 31, Township 13, Range 3 West, containing forty acres, more or less.

"The Northwest fourth of the Northeast fourth of Section 31, Township 13 South, Range 3 West, containing 40 acres, more or less."

Sanders testified that when he went into possession of his property in 1947, the road was the boundary. He used the road in 1955 for access to a watermelon patch located west of the property in dispute and, after selling that west property in 1964, had used the road three or four times a year to inspect his northern boundary. He has not resided on the property since 1953. Since 1955 he has cut a few poles off his property and, after selling part of the property to his daughter, fenced his part of the property. Sanders testified that the first time he saw "no trespassing" signs on both sides of the road was October, 1975.

Sandlin testified that he has farmed on the north side of the road but has never farmed south of the road. However, he keeps the south side of the road bushhogged and several years ago planted fescue on both sides. He has also cut tree limbs from the south side to clear passage of the road. The road is the only means of ingress and egress to the homes of Sandlin, his father, and his son. In fact, the dirt road deadends at their homes. Since he acquired the property in 1967, Sandlin has posted "no trespassing" signs on both sides of the road.

H. J. Lang testified that he and his father had tended what is now the Sandlin's property 40 years ago. It was always his understanding that the Sanders owned the left and Doc Johnson, Sandlin's predecessor in title, owned the right. The road was considered the boundary. According to Lang, anyone who wanted, had traveled the dirt road, and that hunters had used the road.

Jim Tyler, a friend of Sandlin's father for 17 years, testified that "no trespassing" signs had been on both sides of the road ever since he had been going there.

Larry Blaylock, a neighbor, testified that he had always heard the road referred to as Sandlin's road, that "no trespassing" and "no hunting" signs had been posted on both sides of the road as long as he could remember, and that he had seen Sandlin cutting trees on the south side of the road one time.

Sandlin's father, Hershel Sandlin, testified that he had posted signs on both sides of the road when he acquired the property in 1960. He uses the road every day and had sold three or four pine trees off of the property south of the road.

Gene Blaylock, a member of the County Commission representing District I, in which the disputed property lies, testified that Sandlin owns land on both sides of the road. Until two years ago, the County worked anyone's private road, but now maintains only public roads. The County has maintained the dirt road in question both prior and subsequent to this policy change. Blaylock stated that the road is used by public vehicles such as county school buses and mail carriers.

Sanders presented three "surveys," all setting the boundary between the NW 1/4 of the SE 1/4 and the SW 1/4 of the NE 1/4 of Section 31 in the center of the dirt road. Sandlin introduced a survey establishing the boundary approximately 20 feet south of the road. The different conclusions of the surveys revolves around the measurement of the length of the northern interior quarter-quarter line of the NW 1/4 of the SE 1/4 of Section 31, thus affecting the location of the half section line under the methods used in Sanders' surveys.

A 1960 "possession" plat, performed by Rice, recorded the measurement of this northern interior quarter-quarter line as 1366.03 feet. The 1975 Hollis survey, adopted by the trial court in its final judgment, relies on this measurement in locating the half section line which divides the properties, as did plaintiff's Exhibit 17, performed during the trial in an attempt to verify the findings of the Hollis survey.

The issues presented for our review are (1) whether the trial court was plainly and palpably erroneous in determining the boundary to be the center of the dirt road; (2) whether the trial court was plainly and palpably erroneous in holding that the road is a public road; (3) whether the exclusion of Hershel Sandlin's offered testimony concerning statements by Johnson as to the location of the boundary was error; and (4) whether denial of Sandlin's motion for appointment of an independent surveyor was reversible error.

I.

The trial court held:

". . . (T)hat the Plaintiffs are entitled to the relief sought by their Complaint and that the Plaintiffs' property lies south of the road, and the Defendant's land lies north of the road, and the Court further finds that the northwest corner of the property of the Plaintiffs, Willis A. Sanders and Barbara Jean Sanders, and the southwest corner of the property of the Defendant is the northwest corner of the NW 1/4 of SE 1/4 of Section 31, Township 13 South, Range 3 West, as established by the survey of Frank S. Hollis, Registered Land Surveyor, Registration No. 9323, as shown by plat of said survey dated August 28, 1975, and that the boundary line between the lands of the parties hereto runs from said corner north 89o 33' 11"' east along the road as shown in said survey, a distance of 810 feet, and as claimed by the Plaintiffs."

It is well settled that the decree of a trial court, hearing the evidence ore tenus, will not be disturbed on appeal unless the decree is plainly and palpably erroneous. Varner v. Carr, 291 Ala. 654, 286 So.2d 294 (1973); Deese v. Odom, 283 Ala. 420, 218 So.2d 134 (1969). Sandlin contends that this presumption is overcome because the Hollis survey, adopted by the trial court, fatally relies upon the Rice survey's 1366.03 feet measurement of the northern interior quarter-quarter line. It is undisputed that the Hollis survey did rely heavily upon this measurement for determining the location of Sanders' northern boundary. Plaintiff's Exhibit 17, introduced to bolster the conclusions of the Hollis survey, likewise relies upon this measurement. (Although other calculations were made to determine the proper location of the half section line, Mr. Allred in constructing Exhibit 17 admittedly measured 1366.03 feet north to determine the northern boundary.)

In Merchants National Bank v. Hall, 278 Ala. 319, 178 So.2d 146 (1965), the court stated:

"Thus by the complainant's own witnesses, the Durant line of 1962 was shown to have been based upon the Teter description which in turn had been based upon the Greenwood survey, the accuracy of which was questionable to the extent that the additional conveying all the land owned by the Hall sisters (the northern two-thirds of the original Young C. Hall tract in Section 8, supra) was added. Such evidence cannot be deemed of any real probative value justifying the lower court decreeing that the Durant line was the correct boundary between the northern two-thirds and the southern one-third of the original Young C. Hall tract, and the decree of the lower court is erroneous in this...