Shepherd v. Scott's Chapel, A.M.E. Zion Church

• Decision Date: 12 May 1927
• Docket Number: 6 Div. 646
• Citation: 112 So. 905,216 Ala. 193
• Parties: SHEPHERD v. SCOTT'S CHAPEL, A.M.E. ZION CHURCH.
• Court: Alabama Supreme Court

112 So. 905

216 Ala. 193

SHEPHERD v. SCOTT'S CHAPEL, A.M.E. ZION CHURCH.

6 Div. 646

Supreme Court of Alabama

May 12, 1927

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action in ejectment by Everett Shepherd against Scott's Chapel A.M.E. Zion Church. From a judgment for defendant, plaintiff appeals. Affirmed.

Aird &amp Aird and J.T. McLendon, all of Birmingham, for appellant.

Harsh &amp Harsh and W.T. White, all of Birmingham, for appellee.

GARDNER J.

Statutory ejectment by appellant against appellee to recover the east 6 1/2 feet of the west 30 feet of lot 18, block 64, according to the Elyton Land Company's survey of the city of Birmingham, Ala.

It was agreed between the parties that plaintiff holds by mesne conveyance paper title derived from the Elyton Land Company to the whole of the west 30 feet of said lot 18, and that defendant holds the paper title derived by mesne conveyance from the Elyton Land Company to lot 19 and the east 20 feet of said lot 18--having acquired title thereto by deed from one Constantine and wife executed to the trustees of the defendant, church, on August 17, 1881, the church being incorporated thereafter on March 13, 1885.

The cause, as to its real merits, was reduced to the question as to whether or not defendant had held possession of the property sued for in such manner and for such period of time as to constitute a complete defense to plaintiff's action.

As appears, the case involves a disputed boundary between coterminous owners and the question of adverse possession as to the property sued for from the time of defendant's purchase in 1881, and it is not insisted on the part of appellant that section 6069 of the Code of 1923, or its progenitors, has any influence upon the case. Hopkins v Duggar, 204 Ala. 626, 87 So. 103; Smith v. Bachus, 201 Ala. 534, 78 So. 888; Jones v. Rutledge, 202 Ala. 213, 80 So. 35; Spragins v. Fitcheard, 206 Ala. 694, 91 So. 793; Cox v. Broderick, 208 Ala. 690, 95 So. 186; Ford v. Bradford, 212 Ala. 515, 103 So. 549.

The evidence upon the question of adverse possession was that offered by defendant only--plaintiff offering nothing to the contrary.

The cause was tried before the court without a jury, a special finding of facts requested (section 9500, Code of 1923), which request was complied with by the court, and judgment rendered for defendant.

In Jones v. Hines, 205 Ala. 145, 87 So. 531, this court discussed the change made in the above-cited statute, which permits a review of the finding of the court on the facts, notwithstanding a special finding in pursuance of the statute, and in subsequent decisions expressed doubt as to the usefulness of the statute from a practical standpoint. Shaw v. Knight, 212 Ala. 356, 102 So. 701; Smith v. Kennedy, 214 Ala. 427, 108 So. 564.

There are a number of assignments of error, based upon separate statements of fact, as set out in the special finding of facts. A discussion of each of them here would serve no useful purpose, as the question of importance upon this appeal is whether or not the judgment of the trial court was sufficiently sustained by the proof. Authorities, supra. We answer that question in the affirmative. A very brief outline of the facts will suffice. The property purchased for the church in 1881 is situated on the corner of Fourth avenue and Sixteenth street, and upon this corner was the church. Lot 19 is east of lot 18, and directly on the corner. West of the church, and on lot 18, was the parsonage, and within about 2 feet of the parsonage and on the west side was a fence, and the 6 1/2 feet here sued for are within the inclosure of this fence and a great portion thereof covered by the parsonage. The fence extended straight back parallel with the parsonage and with Sixteenth street, and through the property here in question. The parsonage was a frame building, but in 1903 it was rolled straight back from the front and a brick front put on the parsonage. The distance between the parsonage and the fence remained the same, and the improved parsonage is situated in the same place as the original. The fence was there at the time of the purchase by the church in 1881, and remained until removed (by some one not associated with defendant) just a few months prior to the institution of this suit.

The evidence further tended to show that the defendant church remained in possession of this property up to this fence under claim of ownership since the purchase in 1881, using it for the purposes for which it was bought--the church for services and church activities and the parsonage as a residence for the pastor. For a period of more than 40 years the defendant has, under the undisputed proof, been continuously in the actual, open, undisturbed, hostile, and exclusive possession of the property sued for, and under claim of ownership.

Appellant insists, however, that the evidence is insufficient to show the necessary elements of adverse possession, as particularly set forth in Alexander City U.W.H. Co. v. Cent. of Ga. Ry. Co., 182 Ala. 516, 62 So. 745; that adverse possession rests in intention of the possessor; and that the intention "guides the entry and fixes its character."

The argument, we think, overlooks the effect of the evidence as to acts of ownership and use of the property. The defendant made use of this property to the fence for all the period as if the true and sole owner thereof, and, as said in Kidd v. Browne, 200 Ala. 299, 76 So. 65:

"Openness, notoriety, and exclusiveness are shown by acts

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