Seidler v. Phillips

• Court: Supreme Court of Alabama
• Citation: 496 So.2d 714
• Parties: Gerald M. SEIDLER and Mary Beth Seidler v. Leon PHILLIPS, as Trustee under the Will of William A. Handley, deceased. 84-698.
• Decision Date: 03 October 1986

Page 714

496 So.2d 714 Gerald M. SEIDLER and Mary Beth Seidler
v.
Leon PHILLIPS, as Trustee under the Will of William A. Handley, deceased. 84-698. Supreme Court of Alabama. Oct. 3, 1986.

S. Sanford Holliday, Wedowee, for appellants.

Lewis H. Hamner, Roanoke, for appellee.

MADDOX, Justice.

This case presents a boundary line dispute between coterminous landowners. We affirm.

The location of the boundary between the parties was highly disputed for a number of years before this suit was filed, and the testimony at the trial of the case before the judge, sitting without a jury, was conflicting. The judge found in favor of the plaintiff as to both disputed boundaries, evidently on the ground that the plaintiff, even though not having record title, had acquired the parcels by adverse possession.

We agree with the appellants' contention that in an adverse possession case the claimant must prove by clear and convincing evidence "open, notorious, hostile, continuous, and exclusive possession for only 10 years." Lilly v. Palmer, 495 So.2d 522 (Ala.1986); Tidwell v. Strickler, 457 So.2d 365, 368 (Ala.1984); Grooms v. Mitchell, 426 So.2d 820, 822 (Ala.1983); nevertheless, when a trial court hears a case ore tenus, its findings of fact are presumed correct, and this Court will not reverse a judgment based on those findings unless it is plainly erroneous or manifestly unjust. Chism v. Hicks, 423 So.2d 143 (Ala.1982). This presumption of correctness in ore tenus cases is especially strong in adverse possession cases because the evidence in adverse possession cases is usually difficult to weigh from the vantage point of an appellate court. Lilly v. Palmer,

Page 715

supra; Scarbrough v. Smith, 445 So.2d 553 (Ala.1984). Witnesses in adverse possession cases frequently testify to the existence of "lines, locations, distances, monuments, culverts, fences and the like" by pointing or verbally referring to a diagram. Barnett v. Millis, 286 Ala. 681, 684, 246 So.2d 78, 80 (1971).

Our review of the trial court's finding is made doubly difficult in this case because the court reporter lost the transcript of the evidence, and the parties attempted to use Rule 10(d), Ala.R.App.P., but could not agree upon what the evidence showed; whereupon the trial court entered the following order:

"The Court has attempted without success to locate trial notes in the above-styled cause. However, the Court does have some independent recollection of the testimony presented at trial, and the Court has carefully reviewed the parties' statements of the evidence made pursuant to Rule 10(d), Alabama Rules of Appellate Procedure.

"As stated by the parties the above-styled cause is a land line dispute. The deeds in both appellants' and appellee's claim of title shed only a little light on the true location of the land line in dispute due to certain inadequacies in the description contained therein. In addition, the tax maps introduced were helpful only in locating the land generally.

"The land in question is rural undeveloped land. Over the years there have been limited farming and spot timber operations. There are a number of reasons that both tracts have not been completely exploited over the years. Some of these reasons are topographical. That is to say, some of the land could not be economically used.

"The ruling in this case was made after considering the totality of the evidence produced and the demeanor of the witnesses testifying. In addition no one anticipated that he would be called upon to specifically enumerate testimony given. Consequently, it is difficult to say that the statement of facts presented by either party is inaccurate. There is no question that the facts in this case have been hotly disputed since before the inception of the instant litigation. During the course of trial, testimony was given concerning old fencing which is present in some trees. At the outset it is important to note that there was no testimony of an existing old fence which runs for any significant length. Most of the fencing found was short pieces which [were] originally affixed to trees. The trees have now grown around the...