Strickland v. Markos

• Decision Date: 13 July 1990
• Citation: 566 So.2d 229
• Parties: Franklin Felix STRICKLAND, et al. v. Demetrios C. MARKOS and Betty Markos. 88-1484.
• Court: Alabama Supreme Court

Page 229

566 So.2d 229

Franklin Felix STRICKLAND, et al. v. Demetrios C. MARKOS and Betty Markos.

88-1484.

Supreme Court of Alabama.

July 13, 1990.

Keith A. Howard of Howard, Dunn, Howard & Howard, Wetumpka, for appellants.

Steven F. Schmitt and Clay Hornsby, Tallassee, for appellees.

JONES, Justice.

This is an appeal from a judgment entered in a boundary line dispute between coterminous landowners. The plaintiffs/appellees, Demetrios and Betty Markos, as husband and wife, own and operate a restaurant and lounge on Highway 231 in Wetumpka, Alabama. The defendants/appellants Franklin Felix Strickland and others, own property adjacent to that of the Markoses. The Markoses filed suit against Strickland and the other defendants, alleging ownership of the driveway and parking lot of the restaurant by adverse possession.

After an ore tenus hearing and a personal inspection of the disputed property, the trial judge entered judgment for the plaintiffs consistent with their claim of adverse possession. From that judgment, the defendants appeal.

The disputed property (parcel one) and an undisputed property (parcel two) were originally owned by Maggie DeBardelaben as one tract. This tract was sold to J.D. and Minnie Sims in 1953 as one lot consisting of 1.20 acres. In 1956, the Simses divided the tract into two lots, selling parcel two to J.W. Adair, while retaining parcel one. Subsequently, parcel two was sold to two different purchasers prior to George and Jessie Poston's purchase of parcel two on June 13, 1967. On June 27, 1967, J.D. Sims sold property to Wilfred and Frank Strickland. It is contended by the Stricklands that parcel one was included in that conveyance. On October 2, 1968, Demetrios and Betty Markos leased, with an option to purchase, parcel two from the Postons. On April 14, 1972, the Markoses exercised their option to purchase parcel two. On June 24, 1977, the Markoses conveyed their interest in parcel two to Billy and Maureen Candle. In exchange therefor, the Candles executed a second mortgage in favor of the Markoses. On August 22, 1978, the Markoses foreclosed on the Candleses' property and thereby regained possession of parcel two.

The trial court's findings of fact and its reasons given for the judgment read as follows:

"1. Plaintiffs and Defendants are coterminous property owners.

"....

"4. Parcel # 1 (0.18 acres more or less) as described in Plaintiff's Exhibit # 12 was referred to during the course of the trial as the 'disputed property'. It is to parcel # 1 that both parties claim ownership and possession.

"5. The Court finds that the Plaintiffs Demetrios C. Markos and Betty Markos and their predecessors in title have been [in the] open, actual, exclusive, notorious, and hostile possession of parcel # 1 as described in Plaintiffs' Exhibit # 12 for a period of more than 20 years prior to the filing of this present action. The Court finds that evidence of this possession by the Plaintiffs and their predecessors in title would include such possessory acts as:

"a. Only the Plaintiffs cut the grass on parcel # 1.

"b. Only the Plaintiffs had gravel 'hauled in' and 'placed' on parcel # 1.

"c. Only the Plaintiffs or their predecessors in titled have added improvements to parcel # 1 (restaurant additions).

"d. Only the Plaintiffs have paid ad valorem taxes on parcel # 1.

"e. Only the Plaintiffs and their predecessors in title have generally exercised ownership as would comport with being the true owner of parcel # 1.

"6. The Court further finds that the Defendants admitted that Plaintiffs and their predecessors in title have continuously used as a parking lot and driveway that portion of parcel # 1 around the back of the Wetumpka Restaurant since 1968 continuously and even before 1968. Additionally, at least eight independent witnesses testified that the Plaintiffs have used parcel # 1 as a parking lot and driveway since at least 1968. The parties stipulated that approximately 15 additional witnesses would testify consistent with the testimony of these eight independent witnesses.

"7. The Court further finds that the Defendants have had actual knowledge of the Plaintiffs' acts [of] open, actual, exclusive, hostile and notorious possession of parcel # 1 for more than 20 years. [The defendants had this knowledge] at the time they purchased certain real property from J.D. Sims and Minnie L. Sims by deed dated June 27, 1967 (Plaintiffs' Exhibit # 1).

"8. The Court further finds that the deed by which Defendants claim ownership to parcel # 1 was never accurately described in any survey by the Defendants' surveyor, Mr. Larry Speaks. The Court finds that Mr. Speaks' testimony was true when he described his surveys in words to the effect that he was simply making an 'attempt to balance' Plaintiffs' deed description.

"9. The Court further finds that the true and accurate boundary line between the Plaintiffs' and Defendants' properties is described in Plaintiffs' Exhibit # 12, ... which bears an approximate overall length of 226.35 feet more or less.

"10. The Court further finds that the Defendants have a driveway for ingress [to] and egress [from] their property onto Highway 231. This driveway is denoted by 'curbing' located on the Highway 231 road frontage to the southwest of the disputed property. By [this] finding in favor of the Plaintiffs, Defendants are not denied access to their property.

"11. The Court further finds that the Defendants and their predecessors in title have acquiesced and agreed to the location of the boundary line as claimed by the Plaintiffs for more than 10 years and specifically during the period of time 1956 through 1978. The Court finds that the Defendants did not raise any question of boundary line location to the Plaintiffs until approximately 1978. Therefore, the Court finds that it is not equitable for the Defendants to sit idly by and watch various improvements being made to parcel # 1 and expenses incurred in improving parcel # 1 and never question Plaintiffs' use and possession of parcel # 1 until 1978.

"12. The Court further finds that except for questions raised by the Defendants in 1978, Defendants did nothing ... to pursue their alleged claim to parcel # 1.

"13. The Court further finds that the law of 'tacking' is applicable in this matter and Plaintiffs may 'tack' the possessory acts of their predecessors in title with regard to parcel # 1.

"FINAL JUDGMENT

"Therefore, it is ordered, adjudged, and decreed that, as between the parties to this lawsuit and their successors, heirs, and assigns, Plaintiffs, Demetrios C. Markos and Betty Markos, are the owners of those lands shown as parcel # 1 and parcel # 2 in Plaintiffs' exhibit # 12 and which are more particularly described as follows:

"Parcel # 1

"All that 0.18 acre parcel of land lying West of U.S. Highway 231 and being situated in the NE 1/4 SE 1/4 of Section 24, T18N, R18E, St. Stephens Meridian, Elmore County, Alabama and more particularly described as follows: Commence at the SE corner of Section 24, T18N, R18E; thence West a distance of 475.78 feet to a point; thence North 1503.37 feet to an iron pin at R/W widening point at Station 689-26.52 of said highway marking point of beginning of parcel herein described; thence a chord bearing and distance along and with a spiral curve R/W limits N 28? 58' 03"' E-53.12 feet; thence leaving said R/W limits N 35? 84' 26"' W a distance of 190.87 feet to an iron pin; thence S 78? 30' 34"' W a distance of 27.04 feet to an iron pin; thence S 28? 58' 03"' E a distance of 204.93 feet to an iron pin on R/W widening point; thence continue on widening S 37? 26' 47"' E a distance of 21.42 feet to point of beginning, containing 0.18 acres more or less.

"Parcel # 2 [This parcel not being in dispute here, we have omitted its description.]

As previously stated, this was a nonjury case. This Court has written a plethora of opinions setting out the standard of review in such cases: When evidence is presented ore tenus, the trial court's findings of fact will not be disturbed on appeal unless they are unsupported by credible evidence or are manifestly unjust. Nelson v. Styron, 524 So.2d 353 (Ala.1988). The presumption of correctness accorded judgments in such cases is strengthened when the trial judge has viewed the property in dispute. Jones v. Henderson, 535 So.2d 90 (Ala.1988). Moreover, this presumption of correctness is even stronger in adverse possession cases, because in such cases the evidence is generally difficult to weigh from the appellate court's vantage point. Seidler v. Phillips, 496 So.2d 714 (Ala.1986).

Essentially there are two forms of adverse possession in Alabama; 1) adverse possession by prescription; and 2) statutory adverse possession. Adverse possession by prescription requires actual, exclusive, open, notorious, and hostile possession under a claim of right for a 20-year period. Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965).

" 'Statutory adverse possession requires the same elements, but the statute provides further that if the adverse possessor holds under color of title, has paid taxes for ten years, or derives his title by descent cast or devise from a possessor, he may acquire title in ten years, as opposed to the twenty years required for adverse possession by prescription. Code 1975, § 6-5-200. See, Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962).'

"Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 618 (Ala.1980); see, also, Morgan v. Alabama Power Co., 469 So.2d 100 (Ala.1985)."

Daugherty v. Miller, 549 So.2d 65, 66-67 (Ala.1989).

With respect to statutory adverse possession, this Court in Brown v. Alabama Great Southern R.R., 544 So.2d 926, 931 (Ala.1989), stated:

"In Carpenter v. Huffman, 294 Ala. 189, 314 So.2d 65 (1975), Justice Jones summarized the applicability of our adverse possession statute, now Ala. Code 1975, § 6-5-200, as it relates to coterminous landowners:

" 'The three alternative prerequisites 1)...