Spradling v. May

• Decision Date: 14 May 1953
• Docket Number: 2 Div. 308
• Citation: 65 So.2d 494,259 Ala. 10
• Parties: SPRADLING v. MAY.
• Court: Alabama Supreme Court

Page 494

65 So.2d 494

259 Ala. 10

SPRADLING v. MAY.

2 Div. 308.

Supreme Court of Alabama.

May 14, 1953.

Chester Austin, Birmingham, and Marcus McConnell, Jr., Livingston, for appellant.

Ira D. Pruitt, Livingston, for appellee.

SIMPSON, Justice.

P. B. May filed this bill against E. F. Spradling to establish a dividing line--in dispute--between their coterminous lands. Title 47, Chapter 2, Art. 1, Code 1940. The court established the line claimed by May and Spradling has appealed.

The decree is to be accorded the usual presumption attending its correctness. The evidence was submitted ore tenus in open court and the conclusion on the facts has the force and effect of a jury verdict. In the light of the presumption, we have concluded that to disturb the finding of the court would be without warrant. The case was one purely of fact to be resolved on a consideration of the testimony of the witnesses. So, with that court's superior knowledge of the locus in quo gained from being on the ground, so to speak, and hearing the witnesses testify, as we have said in many previous cases, he must have been better advantaged than we to arrive at a correct solution of the perplexing question.

The area between the two disputed boundary lines comprises about 72.5 acres in the south portion of the north half of Fractional Section 16 and 4.5 acres off the north side of the south half of Fractional Section 16, Township 20 North, Range 1 West, Sumter County, Alabama. The common source of title originated in 1911 by a decree of the chancery court of Sumter County whereby Emma W. Scarborough and her children were invested with title to the 'N 1/2 of Fractional Section 16, Township 20, Range 1 West, and 4 1/2 acres off the north side of the S 1/2 of Fractional Section 16' and whereby W. W. Winslett was invested with title to the 'S 1/2 of Fractional Section 16, Township 20, Range 1 West, less 4 1/2 acres off the north side of the S 1/2 of said Section lying and being in Sumter County.' Pursuant to this decree deeds were exchanged by the Scarboroughs and Winslett conveying each to the other the respective lands set out in the decree. Thus was the boundary line between the two tracts of land established, resulting that title to the disputed area was thereby vested in the Scarboroughs.

Appellee May claims this as the boundary line and relies upon an unbroken chain of record title and possession originating from that common source. His title comes from a conveyance of the property in November, 1943, by one Nixon who received a deed from the Scarboroughs in June, 1943. The description in both deeds was in accordance with that in the decree of 1911 investing the Scarboroughs with title.

Appellant Spradling relies upon a deed from said Winslett dated December 20, 1924, and an unbroken record chain of title thenceforth, together with adverse possession. His chain of title through Winslett is as follows: Winslett to Willis in 1924; Willis to his daughter, Maggie W. Cathey, by will probated in 1929; Maggie W. Cathey to appellant Spradling February, 1942. The description of the lands in Fractional Section 16 in the deed from Winslett to Willis and from Cathey to Spradling was a departure from the established line between the coterminous owners and conveyed the disputed area to which they had no record title, and in addition thereto several other distinct and separable tracts of land, comprising altogether 1043.43 acres. The 1043.43 acres is described in these two deeds as being in accordance with a map and survey made by M. E. Summer, county surveyor, in 1924, attached to and made a part of the conveyances and recorded with them.

The incipiency of the trouble, of course, was when Winslett, though having no title to any part of the north half or to the 4.5 acres in the north part of the south half of Fractional Section 16, proceeded to deed to Willis not only the 4.5 acres in the south half, but also the acreage in the north half of Fractional Section 16. This conveyance was clearly abortive to convey a good paper title and in order to support his claim of title Spradling, as stated, is relying on adverse possession.

It would be purposeless to detail the evidence, so we will refer to it but briefly. The evidence for the appellant to support his claim of adverse possession tended to show: After receiving his deed from Winslett in 1924, Willis placed a concrete post on the bank of the river at a point where the north line of the disputed area touched the river and also erected concrete posts at other points around the 1043.43 acres in accordance with the survey of Mr. Sumner mentioned in his deed from Winslett. Witness Cathey, brother-in-law of Mrs. Cathey, Spradling's grantor, testified that Willis showed him the posts and pointed out the lines and that his brother, Mrs. Cathey's husband, built a fence along the new line surveyed by Sumner more than ten years before the litigation was commenced; that Cathey operated a cattle farm on the large tract of land (just where is not clear), using some of the disputed area as a cattle run or pasture when it was not overflowing; that Mr. Cathey erected a camp house and built a small lake on the large acreage purchased from Willis, but this was several miles from the land in question; appellant Spradling, after his purchase, farmed a part of the large tract of land for a while, hunted on it, sold timber from it and leased the swamp one year. Spradling and his predecessors in title assessed and paid the taxes, but the Scarboroughs did likewise. The evidence does not make it altogether clear exactly all of the acts it is claimed were exercised over 'Big Swamp,' as we understand it, the property in dispute, except that it was used for a cattle run, more or less spasmodically, and perhaps appellant may have sold some timber from it and leased it for one year. One difficulty with appellant's evidence is that no differentiation seems to have been made in the testimony between the possessory acts claimed to have been exercised over Big Swamp and the remaining 1043.43 acres which Winslett deeded to Willis and Mrs. Cathey deeded to Spradling. The witnesses generally referred to the property as the Winslett place. We specifically point this out in view of a controlling principle of law to be later adverted to.

The trial court in a lengthy decree reciting the pertinent evidence to sustain it ruled that Spradling had not sustained his burden of proving title by adverse possession superior to the unbroken record title of May. The land in controversy was proven to be wild swamp land along the Tombigbee River, which during the rainy season each year was overflowed and was practically inaccessible; the Scarborough family had exercised possessory acts over the 152.5 acres allotted to them by the 1911 decree, but the disputed area being so inaccessible it was not susceptible of much or notorious acts of possession and the real owners visited it at only infrequent intervals. But the Scarboroughs and their successors were claiming it as evidenced by various conveyances and otherwise. In 1927 one of the Scarborought children conveyed her interest in the property to Mrs. Emma W. Scarborough, using the same description as carried in the 1911 decree; in 1921 another of the children executed a power of attorney to his mother granting her the right to convey his interest in the timber; in 1930 Emma W. Scarborough et al. conveyed the timber to E. L. Bruce & Company; in 1936 Mrs. Scarborough and the other title holders conveyed the timber to Bell-Hunnicutt Lumber Company. In 1941 her son conveyed his interest in the land to Mrs. Scarborough and in June of 1943 Mrs. Scarborough and a daughter, the then title owners of the property, conveyed the entire title to Nixon. In 1943 Nixon conveyed the timber on the land to Mico Log & Timber Company and in the same year mortgaged the land to McMillan & Company. In 1943 he conveyed the entire property to appellee May. During their ownership, Mrs. Scarborough and her children also leased the property to one Neal, who farmed it. He cut timber in the swamp for the purpose of keeping up the improvements and the fences repaired. He rented portions for several years. He and his tenants hunted on the land. The purchasers of the timber cut and removed timber from some of the 152.5 acres, but it appears they did not cut in the big swamp because of apprehension of Cathey's claim. There was testimony that the true dividing line was the Scarborough line established in 1911. Witness Greenleaf helped run this line. Other witnesses, including Mr. Reed, county surveyor, testified there were blazes and other marks designating this original line. Many witnesses testified that the disputed land was wild river swamp land and...