Smith v. Brown

• Decision Date: 13 June 1968
• Docket Number: 4 Div. 218
• Citation: 213 So.2d 374,282 Ala. 528
• Parties: Hattie Robinson SMITH v. Demarias Stevens BROWN.
• Court: Alabama Supreme Court

Page 374

213 So.2d 374

282 Ala. 528

Hattie Robinson SMITH v. Demarias Stevens BROWN.

4 Div. 218.

Supreme Court of Alabama.

June 13, 1968.

Rehearing Denied Aug. 22, 1968.

W. G. Hardwick and Jere C. Segrest, Dothan, for appellant.

J. Robt. Ramsey, Dothan, for appellee.

KOHN, Justice.

This suit was filed in the circuit court of Houston County, in equity, by Demarias Stevens Brown against Hattie Robinson Smith for the purpose of establishing a boundary line between their property, invoking the jurisdiction of the court under Title 13, § 129 and Title 47, § 3, Code of Alabama, 1940.

Submission for final decree was on the amended complaint, answer of the respondent, and testimony taken before the official court reporter of Houston County, Alabama, on June 26, 1962. Thereafter, on October 14, 1964, the lower court established as the true line that claimed by complainant. Appellant (respondent) appeals from the decree of the circuit court establishing the boundary line.

There are basically two issues for our determination: (1) Whether the decree of the lower court correctly established the true boundary line between the two lots; and (2), has respondent acquired by adverse possession any of the land lying north of said true line. The strip of land which is in dispute measures approximately 15 75 feet across the northern side of respondent's lot. A rough map is provided to assist in a proper understanding of the case.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The testimony was taken by deposition and not in open court. We, therefore, must examine and form our own judgment as to its probative force without any presumption in favor of the findings of the lower court. W. T. Smith Lumber Co. v. Cobb, 266 Ala. 146, 94 So.2d 763.

1.

Complainant alleges in her bill that she is the owner of the following described real estate:

'One lot in the 200 block of N. St. Andrews St., on the east side thereof, in the City of Dothan, Alabama, described as follows: Beginning at a point 30 ft. North of the NW corner of the Standard Oil Company's lot on the East side of N. St. Andrews St., and running North along the East boundary of N. St. Andrews St., 175 ft., thence East 300 feet; thence South 180 feet; thence West 75 feet; thence North 4 feet and 8 inches; thence West 75 feet to the Southeast corner of the lot formerly owned by Horace Hall; thence North 15 feet to the Northeast Corner of said Hall lot; thence West 150 feet to the starting point and bounded on the West by N. St. Andrews St.; on the North by the former Pemberton lot; on the East by the Dothan Machine Company lot and on the South by the Robinson lot and the R. H. Ramsey lot.'

Complainant further avers that respondent, Hattie Robinson Smith, is the owner of, and is in possession of a house and lot on East Troy Street in Dothan, Alabama, described as follows:

'Commencing at a point 225 feet East of the Southwest corner of the former J. R. McCarty residence lot, now owned by DeMarias Stevens Brown, on the East side of North St. Andrews St., said point of beginning being on the line as it runs between said McCarty lot and the former lot of Alto L. Barnes and running in an easterly direction 75 feet; thence Southward 89 feet; thence Westward a distance of 89 feet to a point 225 feet from the inside of the sidewalk on the East side of North St. Andrews St., and thence Northward from said point to the starting point.'

However, the deed by which respondent acquired the lot in question contained the following description:

'Commencing at a point on the north side of Troy Street 225 feet east of the inside edge of the sidewalk on the east side of North St. Andrews Street; and running northward parallel with St. Andrews Street 89 feet to the south side of one lot owned by J. M. Stevens, and formerly known as the J. R. McCarty lot; thence east along the south side of said Stevens lot 75 feet; thence southward 89 feet to a point on the north side of Troy Street 89 feet east of the starting point; thence west along the north side of Troy Street 89 feet to the point of beginning; said measurements being exclusive of sidewalks.'

Complainant's bill further avers in Paragraph Five:

'Plaintiff further avers that that part of the description of said lot in paragraph Four which reads: 'said measurements being exclusive of sidewalks' is an error and that as a matter of fact the sidewalk and a part of East Troy Street now occupy a part of said lot and this is causing the defendant to encroach upon the lot of the plaintiff; that plaintiff now owns the lot referred to in the description in paragraph Four as the lot owned by J. M. Stevens, and formerly known as the J. R. McCarty lot and that the defendant's property is bounded on the north by said Stevens or McCarty lot and that the defendant has never owned any part of it.'

The issue giving rise to this suit is thus clearly evident. Are the 89 foot east and west boundaries of respondent's property to be measured from the north side of the sidewalk on East Troy Street, or do the 89 foot lines encompass the sidewalk and a part of East Troy Street? A study of the history of respondent's chain of title convinces us that the latter is the correct interpretation.

The lot presently owned by respondent was, for a time prior to 1920, owned by Alto L. Barnes. On February 25, 1920, Barnes conveyed that parcel of property to Mrs. E. J. Robinson by warranty deed. The deed contained the following description of the lot:

'One vacant lot in the City of Dothan described as follows: Commencing at a point 225 feet from the southwest corner of the J. R. McCarty residence lot now owned by Dr. J. M. Stevens, on the east side of North Saint Andrews Street, said point of beginning being on the line as it now runs between said McCarty (Now Stevens lot) lot, and lot of A. L. Barnes and running in an easterly direction seventy-five feet, thence southward 89 feet thence westward a distance of 89 feet to a point 225 feet from the inside of the sidewalk on East side of North St. Andrews St. and thence northward from said point described as being 225 feet from the inside of the sidewalk on East side of N. St. Andrews St. to the starting point.'

On August 31, 1925, Mrs. Robinson conveyed the lot to R. E. Robinson by warranty deed with the following description:

'One house and lot in the City of Dothan, Ala., commencing at a point on the north side of Troy Street two hundred twenty five (225) (feet) east of the inside edge of the sidewalk on the east side of North St. Andrews St. and running northward parallel with St. Andrews Street eighty nine (89) feet to the south side of one lot now owned by J. M. Stevens and formerly owned by J. R. McCarty; thence east along the south side of said Stevens lot seventy five (75) feet thence southward eighty-nine (89) feet to a point on the north side of Troy Street eighty-nine (89) feet east of the starting point, thence west along the north side of Troy Street eighty-nine (89) feet to the starting point said measurements being exclusive of the sidewalks, and being the same property conveyed by Alto L. Barnes to Mrs. E. J. Robinson by deed of date Feb. 25th, 1920 and recorded in Book 38 on page 343 of the Probate office of Houston County, Alabama.'

This latter description has remained in substantially identical form through several mesne conveyances to the present owner, Hattie Robinson Smith. The source of the dispute in this suit is readily apparent from a comparison of the two foregoing descriptions of the same piece of property with the enclosed plat of the property.

The 1920 deed from Barnes to Mrs. E. J. Robinson described the lot beginning at a point on the southern boundary of the lot presently owned by complainant and measuring in an easterly direction 75 feet, then Southerly 89 feet, then westerly 89 feet, then northerly 89 feet to the point of beginning. The 1925 deed from Mrs. E. J. Robinson to R. E. Robinson described the same lot beginning at the purported southern boundary of that lot, i.e., the north side of Troy Street excluding the sidewalk, and running Northerly 89 feet, etc.

Barnes testified that at the time he sold the lot to Mrs. E. J. Robinson in 1920, Troy Street was not as wide as it is now, that it was a dirt street or alleyway at that time, and was approximately 15 feet wide. It appears from this evidence that the lot now owned by respondent was 89 feet deep at the time Barnes sold it to his grantee, but that the subsequent widening of Troy Street and construction of a sidewalk reduced the depth of the lot considerably. This factor was apparently overlooked by the draftsman who prepared the deed when Mr. E. J. Robinson later sold the property in 1925, and the description of the lot as being 89 feet deep has been erroneously carried forward through several subsequent sales of the lot in question. Although the exact date of the widening of Troy Street nowhere appears in the record, from the testimony of Barnes, it was apparently accomplished between the time he sold the lot, February 20, 1920, and October 31, 1925.

A qualified surveyor, M. J. Steensland, was employed by complainant to survey the property in question and prepare a plat to indicate the true boundary between the lots of complainant and respondent. His survey, completed on October 8, 1958, was based on the abstract of complainant's lot and showed the true boundary to be as contended by complainant. This was the line adopted by the court below as being the true boundary line between the two lots.

A surveyor employed by respondent, Horace Adams, found the true line to be as claimed by respondent. However, he admitted that his survey was based entirely on the description contained in respondent's deed, that he did not use an abstract of respondent's lot in conducting his survey, nor did he attempt to determine the south boundary line of the complainant's lot through use of a deed or abstract to such...