Sylvest v. Stowers, 3 Div. 127
Citation | 276 Ala. 695,166 So.2d 423 |
Decision Date | 30 June 1964 |
Docket Number | 3 Div. 127 |
Parties | J. B. SYLVEST v. Willie Walter STOWERS. |
Court | Supreme Court of Alabama |
Mooneyham & Mooneyham, Montgomery, for appellant.
Robt. B. Stewart, Jones, Murray & Stewart, Montgomery, for appellee.
This is an appeal from a decree determining a boundary line between coterminous owners and giving effect to a purported agreement in the form of a suggested decree executed by counsel for both parties.
Appellee, Mrs. Stowers, filed a bill of complaint against appellant, Sylvest, to determine a disputed boundary between their adjoining lands. When the case was first set for trial, the parties reached a settlement which was reduced to writing in the form of a final decree, signed by counsel for both parties and mailed by counsel for appellee to the then trial court, Judge Hugh Maddox. Before the envelope containing the agreement was opened by Judge Maddox, counsel for appellant notified the court that the purported decree did not contain the agreement which had been reached by counsel, and Judge Maddox found that the decree did not reflect the understanding of the parties, but was based upon a misunderstanding, and restored the case to the trial docket.
When the cause came on for trial, Judge Maddox had resigned and the case was assigned to Judge Emmet. Appellee filed a motion to enforce the written settlement agreement, but the court reserved a ruling on the motion and proceeded to hear the case on its merits on December 18, 1963. Two days later, the court entered a decree finding for the appellee on the merits, and found further that the parties had entered into an agreement and gave 'full force and effect' to the agreement under Rule 14, Rules of Practice in the Circuit and Inferior Courts, Tit. 7, Appendix, Code 1940.
This is one boundary line case where there is no material conflict in the evidence. Appellant's land lies west and north of appellee's land. Appellant purchased his land in 1943. His deeds called for Lots 8, 9 and 10 and he was shown a fence which was pointed out as the line between his property and the adjoining 160 acres which was known as the McDade Exemption. Appellee purchased this 160 acres in 1945 and for over ten years there was no question but that the fence was the boundary between them. Appellee's son-in-law and agent, John A. Garrett, testified that each of the parties actually worked and farmed their lands up to the fence, they considered it to be their boundary and they each helped and contributed to its repair and maintenance, which Garrett said was a common practice in the county.
Appellant testified that he went into possession of the land west and north of the fence in 1943 when he purchased it; that he harvested hay on it, usually three times a year; that appellee harvested up to the fence on their side; that he intended to hold to the fence under the belief that the fence was the true property line, and that he claimed title to the fence as the land north and west of the fence had been pointed out to him as the land that was deeded to him.
Carl C. Harmon, a licensed, registered surveyor, testified that he had been employed by appellee to survey the land in 1959 and he finished the job in 1961. According to his survey, the true north line was south of the fence (thereby taking some acreage from Sylvest), and the true west line was west of the fence (thereby taking acreage from Stowers).
Under these undisputed facts, the trial court erred in holding that appellee was entitled to relief on the merits.
Where the question is a disputed boundary line between coterminous owners, the statutory evidentiary prerequisites of adverse possession are inapplicable. Tit. 7, § 828, Code 1940; Duke v. Wimberly, 245 Ala. 639, 18 So.2d 554; Stokes v. Hart, 273 Ala. 279, 139 So.2d 300, and cases there cited.
If a coterminous landowner holds actual possession of a disputed strip under a claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he thereby acquires title up to that line, even though the belief as to the correct location originated in a mistake, and it is immaterial what he might or might not have claimed had he known he was mistaken. Lay v. Phillips, 276 Ala. 273, 161 So.2d 477; McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160, and cases there cited; see Treadaway v. Hamilton, 221 Ala. 479, 129 So. 55.
In Salter v. Cobb, 264 Ala. 609, 88 So.2d 845, we said:
* * *'
Appellee concedes in brief that according to the 'recent opinion in Lay v. Phillips, 161 So.2d 477, the facts of our case would appear to justify the Respondent's claim to title under ten years adverse possession.' But reliance is placed upon a statement made by appellant on cross-examination. On both direct and cross-examination, appellant stated several times that he claimed to the fence because it had been pointed out to him as being the line when he purchased the land in 1943, and he had done so for nineteen years believing it to be the true boundary line. Counsel for appellee had asked several questions trying to get appellant to say that he did not intend to claim any property other than that described in his deed. As we have already shown, 'it is immaterial what he might or might not have claimed had he known he was mistaken,' but objections to these questions were overruled and finally the following occurred:
'Q If your deed called for 600 acres and if you are actually in possession of 600 acres, then, would you have ever or would you now claim 615 acres?
Appellee contends that the statement, 'I would have helped her move the fence on up to the proper line', is an admission of the absence of intention to claim to the fence. We cannot agree.
This court has made it abundantly plain that one does not have to be a willful landgrabber or dishonest in order to acquire title by adverse possession. We quote from Brantley v. Helton, 224 Ala. 93, 139 So. 283:
'If the location of the fence is merely tentative, not intended to define a permanent boundary, and possession is taken, not under claim of title to the fence, but merely to the true line, to be thereafter ascertained, such possession is not adverse.
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First Nat. Bank of Birmingham v. Brown
...'To put complainant to proof of averments of bill, they must be denied. P(r)owell v. Wilson, 219 Ala. 645, 123 So. 38. Sylvest v. Stowers, (276 Ala. 695,) 166 So. (2d) 423.' Appellant's argument is no more than a statement that the allegations and proof must correspond, and that they fail t......