Walker v. Wyman

• Decision Date: 18 June 1908
• Parties: WALKER v. WYMAN.
• Court: Alabama Supreme Court

47 So. 1011

157 Ala. 478

WALKER v. WYMAN.

Supreme Court of Alabama

June 18, 1908

Rehearing Denied Dec. 24, 1908.

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by Bessie W. Walker against Elizabeth A. Wyman. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Gunter & Gunter, for appellant.

Rushton & Coleman, for appellee.

SIMPSON J.

This action of ejectment was brought by the appellant against the appellee to recover a strip of land west of the southeast quarter of section 3, township 15, range 18, in Montgomery county. James A. Ware, the father of the plaintiff and of defendant's first husband, originally owned both the southeast quarter and the southwest quarter of said section in one tract. After the death of said father the said land was partitioned, in 1867, between the plaintiff, to whom was allotted the southwest quarter, and James Ware, Jr., the former husband of the defendant, to whom was allotted the southeast quarter; and it was subsequently conveyed to defendant. As both derive title from a common source, there is no controversy about the fact that the land in question is a part of the southwest quarter, which was allotted to the plaintiff, vesting the legal title in her. The defendant claims this strip of land by adverse possession; the facts as detailed in the bill of exceptions, being in substance as follows For many years, extending back before the partition of the land, the strip of land in question was separated from the remainder of the southwest quarter by a "turn row," "path," or "plantation path across the land." Said James A. Ware, Jr., was a minor when the partition was made. His guardian went into possession of the southeast quarter, allotted to him, and plaintiff went into possession of the southwest quarter. The lands were rented out in a body, together, for about 10 years, after which the tenants of each party cultivated the land, respectively, up to said turn row; and no survey was made until 4 years ago when it was ascertained that the true division line was east of said turn row. But the witness who occupied the southeast quarter as Ware's agent, and then as defendant's, from 1875 to 1896, says that he cultivated up to the "hedge row." The husband of plaintiff, in testifying, says that said turn row was "made on account of shortening the distance across the field." He also states that, in the beginning, the tenants of the plaintiff "cultivated east of the path, but the tenants of the defendant encroached." Defendant was married to James A. Ware in 1881, and in 1885 said James A. Ware, Jr., conveyed to Sayre, and Sayre to defendant, describing the land as the southeast quarter of said section 3, and it is admitted that defendant "has been in possession of the land sued for, up to the turn row or path, since that time."

This is all of the evidence bearing on the character of the possession, except the testimony of the defendant, who stated that she never heard her husband make any statement with reference to his owning the land, "except that he always claimed that land, rented it out;" that she has rented it to different tenants, and it has been in continuous occupancy. On cross-examination, she stated that she did not know where the section line is; that, when she spoke of Mr. Ware's possession, she meant that he was residing on the land that he got in the division of the Ware estate; that she had never heard that there was a dispute as to the location of the line, until she "got notice" of this suit; that she had never heard said Ware say anything showing a purpose to claim any land beyond the true line between Walker and himself; that, when she went into possession, she did not intend to claim any land beyond the true line; that she never did; and that all she meant to say was that she had been cultivating this land up to the turn row. On redirect examination, she stated that she intended to cultivate up to the turn row, "the land always cultivated and claimed by Mr. Ware;" that she considered that the true line of the property; that that was what Mr. Ware considered; that she and he claimed ownership up to the turn row, on the supposition that that was the true line; and that she and Mr. Ware, in taking possession of the land, considered the turn row the western boundary of the land.

The question of adverse possession between coterminous proprietors has caused a great deal of litigation, and the courts have found difficulty in clearly defining the rules to govern the same. Possibly a learned author may be correct in taking the position that the question of intent, while just, as an ethical proposition, yet, in practical operation, is too subtle and dangerous (Warreth on Ejectment, § 440), and possibly it would be simpler to hold that possession is sufficient, without any proof as to with what intent it is held; but our own courts have so long held to the contrary doctrine that it has become imbedded in our laws as a rule of property. Our leading case on that question lays down the propositions: First, that where coterminous proprietors agree upon a dividing line, and jointly construct a fence on said line, followed by occupancy up to said fence by both, said possession is adverse, each to the other, and, if continued for the requisite time, ripens into title; second, where a dividing fence is run beyond the true line, whether from inadvertence, ignorance, or convenience, on the part of the owner, and with no intention to claim up to it as the dividing line, his possession is not adverse to the adjoining proprietor, nor can it, when accompanied by acts of ownership, and continued for the length of time prescribed by the statute of limitations, perfect a title, as against such adjoining proprietor. Browne v. Cockerell, 33 Ala. 38. In this case the court remarks, in accordance with the general law of adverse possession, that "possession is prima facie evidence of title, and a recovery in ejectment may be had upon it; but, when it is shown that the true title is in another, the intendment in favor of the possession ceases. The law, then, will not presume that the possessor does the wrong of disseising the true owner. It devolves upon him the burden of showing the hostility of his possession to the true owner." Pages 45, 46. To the same effect are Alexander v. Wheeler, 69 Ala. 332, 340, Dothard v. Denson, 72 Ala. 541, 544, 545, and also the case of Davis v. Caldwell, 107 Ala. 526, 18 So. 103, in which two coterminous proprietors had cleared and cultivated, for many years, up to a "hedge or fence row," and the court held the possession not adverse, unless the evidence showed that the hedge row had been established by agreement, or that B. claimed up to it "without regard to the title, or true dividing line." 107 Ala. 531, 18 So. 104.

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