Varner v. Carr

• Decision Date: 25 October 1973
• Citation: 291 Ala. 654,286 So.2d 294
• Parties: William VARNER, Jr., et al. v. Bessie CARR et al. SC 120.
• Court: Alabama Supreme Court

Page 294

286 So.2d 294

291 Ala. 654

William VARNER, Jr., et al. v. Bessie CARR et al.

SC 120.

Supreme Court of Alabama.

Oct. 25, 1973.

Rehearing Denied Dec. 13, 1973.

Jones, Murray, Stewart & Yarbrough, Montgomery, for appellants.

Walker, Hill, Gullage, Adams & Umbach, Opelika, for appellees, Ocie Levett, Willie Lue Levett, R. F. Newman, Wallace Farr, R. F. Newman, Inc. and Alabama Wood Products, Inc.

FAULKNER, Justice.

This is an appeal from a decree of the Fifth Judicial Circuit of Alabama establishing a boundary line between the parties.

Appellants' predecessors in title conveyed to them the west half of the northwest quarter of Section 3, Township 16 North, Range 25 East, in Macon County, Alabama. Ocie Levett's predecessors in title conveyed to him the eastern half of the northwest quarter of Section 3, Township 16 North, Range 25 East, in Macon County, Alabama. According to the deeds there was no dispute of the boundary line. However, there arose between the landowners a dispute as to the physical location of the north-south boundary line.

Ocie Levett took possession of the land in 1942. When it was conveyed to him, the land was surveyed by a Mr. Pickett. Pickett placed a concrete marker at the northwest corner of the Levett land. He ran a southerly line and placed an iron pipe at the southwest corner of Levett's land. Subsequent to Pickett's survey, a Mr. Crump surveyed Ocie Levett's land and concluded that Pickett's survey was correct. Crump placed a concrete post at the southwest corner of Levett's land. Subsequent to the Crump survey, Levett's land was again surveyed in 1971 by Philip Fretwell Associates. The northwest and southwest corners were reconfirmed at the concrete markers placed by the previous surveyors. These concrete markers were in place at the time of the trial.

Ocie Levett testified that he had always claimed the land up to the line between these markers. Appellants contended that a fence east of the line between the concrete markers was the boundary line; that this fence was on or near the midline in a north-south direction. Ocie Levett's evidence was that he did not recognize the fence as a boundary line between the parties. The land between the fence and the markers appears to have been in dispute for many years. Timber cutting by appellants on the land west of the disputed property and on the disputed property had been stopped by Ocie Levett. Appellants had invited Levett to institute a 'friendly lawsuit' to adjudicate the title to the property in dispute. The appellants had their own surveyor, a Mr. Sizemore, survey the land. His opinion was that the fence was the correct boundary line. Appellants further contend that they obtained title to the disputed land by adverse possession. Appellants' evidence tended to show that the disputed land had been rented to various tenants for over thirty years. The tenants had farmed the land, run cattle over it. A witness for appellants testified that Levett was told that the fence was the boundary but that he was welcome to cut firewood and hunt on the land west of the fence. Levett testified to many acts inconsistent with such adverse possession claimed by appellants. The tax assessor testified that the lines between Township 16 and Township 17 do not abut and are not standard; that there is a 'dog-leg' between them and because of this the area had been surveyed many times. There was also testimony that Levett did not claim an area of land called the 'fox field'; that Levett was awarded the land by the trial court's decree. The record does not show where the fox field is located....