Van Valkenburg v. Geron

• Citation: 31 So.2d 767,249 Ala. 467
• Decision Date: 31 July 1947
• Docket Number: 8 Div. 379.
• Parties: VAN VALKENBURG v. GERON.
• Court: Supreme Court of Alabama

31 So.2d 767

249 Ala. 467

VAN VALKENBURG v. GERON.

8 Div. 379.

Supreme Court of Alabama

July 31, 1947

John R. Thomas, Jr., of Huntsville, for appellant.

H H. Lanier, of Huntsville, for appellee.

The following is the diagram of the property, referred to in the opinion of the Court:

FOSTER Justice.

The material question in this case is the boundary line between a lot of complainant (appellant) and one of respondent (appellee). It is the north line of complainant's lot and the south line of respondent's lot. The controversy affects the ownership of a strip of land about 27 feet wide extending along the north line of complainant's lot.

Complainant's lot was cut out of the southeast corner of a large one, all of which formerly was the homestead of the late Chief Justice Brickell in Huntsville. Respondent's lot consists of all the balance of it including the dwelling.

In 1888 the Chief Justice conveyed the entire premises to his wife. The dimensions of the boundary lines are not given. Neither are they given fully in the deed to Judge Brickell. Complainant claims under a deed from Mrs. Brickell, after the death of the Chief Justice, to Mannie Allen in 1919. The balance of the lot came into the ownership of the University of Alabama under the will of Judge R. C. Brickell, Jr. The University by its trustees deeded it to respondent in 1938.

A diagram of the property is shown on page 366 of the record which shows the lot of each respectively, and the locus of the dispute. It will be reproduced in the report of the case.

There is apparently an error in the description of complainant's lot. This suit does not seek to reform the deed, but to construe it in the light of the error. The description is as follows: Beginning at a stake on the west margin of Franklin Street, 503 feet and four inches southwardly from its intersection with the south margin of Neal's Alley; thence south 56 1/2 degrees, west 150 feet to a stake, thence south 33 1/2 degrees, east 136 feet to the center of Dry Creek; thence up said creek north 83 1/2 degrees, east 170 feet to the west margin of Franklin Street; thence with said street, north 33 1/2 degrees west 213 feet to the beginning.

The facts are that if the starting point is 503 feet and four inches south of the intersection, the west line of the lot extending to the center of Dry Creek, as it is now located, would be 27 feet longer than as stated in the deed, or 163 feet instead of 136 feet as stated, and likewise the east line would be 240 feet instead of 213 feet as stated.

The deed to respondent describes the lot as extending to the northeast corner of complainant's lot 131.3 feet south of the northeast corner of the Brickell lot then being conveyed. This is 530.3 feet from the intersection mentioned in the description of complainant's lot as being 503.3 feet, making the cause of the controversy.

The question is whether the northeast corner of complainant's lot is 503.3 feet as specified in complainant's chain of title or 530.3 feet from the south margin of Neal's Alley. If the starting point is 503.3 feet south of Neal's Alley, the 136 feet as the distance of the west line of complainant's lot, the 213 feet as the distance of the east line of complainant's lot are both erroneous, if the center of Dry Creek has not changed. The question is whether the error is in locating the starting point or in giving the length of the west and east boundary lines, or whether the center of Dry Creek has changed.

After the conveyance to Allen under which complainant claims, Mrs. Brickell and Robert C. Brickell, Jr., used and rented to others a brick building situated south of the main house known as the law office, and there was an old driveway which extended near the law office. The law office was torn down by respondent in 1938, and the driveway abandoned, and a retaining wall was built along the street to a point 530.3 feet from Neal's Alley and to where respondent has since has possession including the land in dispute. The foundation of the old law office according to some testimony shows that it is on that strip.

Complainant's lot was never physically occupied by Allen or her successors in interest. It is unimproved. The old Brickell dwelling on what is now respondent's lot has been occupied throughout the years. There was no controversy about the boundary line until complainant raised the question, after he bought the property. He bought his lot on February 26, 1945 from Robert Fulton who acquired it under the foreclosure of a mortgage executed by Allen to Mrs. Brickell. His foreclosure deed was executed February 6, 1939.

Complainant's lot was assessed for taxes as the south 212 feet of the lot until 1939. Fulton assessed it according to the description in his deed from 1940 through 1945.

Complainant having acquired the lot in February, 1945, filed this suit in April, 1945. He was convicted for trespass after warning December 10, 1945, and this conviction was affirmed on appeal. Van Valkenburg v. State, 32 Ala.App.566, 29 So.2d 683.

Respondent's lot has been assessed since the sale to Allen as all the lot except the south 212 feet, running back 150 feet east and west.

There is evidence that there was no stake at the starting point in complainant's chain of title 503.3 feet south of the intersection of Neal's Alley and Franklin Street, but there was one at the 530.3 foot point when respondent bought the property and also when complainant bought his lot. There is no evidence of any survey having been made at the time of or prior to...