Seidler v. Phillips
Decision Date | 03 October 1986 |
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. |
Court | Alabama Supreme Court |
S. Sanford Holliday, Wedowee, for appellants.
Lewis H. Hamner, Roanoke, for appellee.
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 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 trial court amended this order and stated:
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...is presumed that the missing evidence is sufficient to support the judgment and the judgment [will] not be disturbed." Seidler v. Phillips, 496 So.2d 714, 716 (Ala.1986) (concluding citations The passages from Desribes v. Wilmer, 69 Ala. 25 (1881), quoted by Chief Justice Moore and Justice ......
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...not approve. We therefore cannot consider such additional and different evidence to have been before the trial court. Seidler v. Phillips, 496 So.2d 714, 716 (Ala.1986). Nevertheless, in light of the concerns discussed in the majority opinion as to the state of the record, I have reviewed t......
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...disputes and adverse possession cases, because the evidence in such cases is difficult for an appellate court to review. Seidler v. Phillips, 496 So.2d 714 (Ala.1986) ; Wallace v. [Putman ], 495 So.2d 1072 (Ala.1986) ; Drennen Land & Timber Co. v. Angell, 475 So.2d 1166 (Ala.1985) ; May v. ......
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