Cloud v. Southmont Development Company

253 So. 2d 298, 287 Ala. 544, 1971 Ala. LEXIS 764
CourtSupreme Court of Alabama
DecidedOctober 7, 1971
Docket6 Div. 796
StatusPublished
Cited by2 cases

This text of 253 So. 2d 298 (Cloud v. Southmont Development Company) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cloud v. Southmont Development Company, 253 So. 2d 298, 287 Ala. 544, 1971 Ala. LEXIS 764 (Ala. 1971).

Opinion

McCALL, Justice.

The complainants appeal from a final decree in which the trial court found that the complainants failed to meet the burden of proof. The decree quiets title in the respondents to a particularly described tract of land that lies east of and adjacent to a tract oyvned by the complainants. The decree also locates and establishes the common boundary between the parties as contended for by the respondents.

The complainant-appellants’ assignments of error Nos. 6, 7, 8, and 12 all question the fixing of the boundary line as contended for by the respondent-appellees, and the [546]*546refusal of the court to fix one as contended for by the appellants. These are the only assignments argued by the appellants in their brief, and they are treated together. The complainants rely solely on the proposition that since the deed to them conveyed all of the property west of the top of the bluff in the quarter-quarter section involved, this call in their property description should control.

Complainants’ land is described in their deed of conveyance from Herold J. Schwab and others, dated July 15, 1966, as follows: „

“Part of the Southwest quarter of the Northwest quarter, Section 32, Township 18, South, Range 2, West, containing 20 acres more or' less, said land described as being all the land West of the top of the Bluff. Situated in Jefferson County, Alabama, as described by deed from J, H. Morris and wife, Emma Morris to Jonas Schwab Company, Inc., recorded in Volume 239, Page 458, dated January 19, 1899. Said Parcel commonly referred to as Tract 27 on the real property map of said Section 32, Township 18, Range 2 West, Jefferson County, Alabama. * * * ”

The complainants assert that the east line of their property, which is the disputed boundary between the parties, is the edge of the bluff in the said SWj4 of the NW54) because the call in their deed is for all land west of the top of the bluff, and since the call is from a natural monument or boundary, this call prevails over any inconsistent calls, citing Van Valkenburg v. Geron, 249 Ala. 467, 31 So.2d 767; Blalock v. Johnson, 256 Ala. 349, 54 So.2d 611; Spires v. Nix, 256 Ala. 642, 57 So.2d 89; Williams v. Bryan, 197 Ala. 675, 73 So. 372; Ayers v. Watson, 113 U.S. 594, 5 S.Ct. 641, 28 L.Ed. 1093; Sheppard Envelope Co. v. Arcade Malleable Iron Co., 335 Mass. 180, 138 N.E.2d 777; De Escobar v. Isom, 112 Cal.App.2d 172, 245 P.2d 1105.

The edge of the top of the bluff from which the complainants claim that their land extends to the west, in the quarter-, quarter section, runs in a generally northeast and southwest direction. The course of the edge of the bluff is irregular and is broken or crossed by openings at several places through which the ground below the edge of the bluff slopes gradually upwards and toward the west. These openings are referred to as draws. In 1969, the complainants had a plat of survey of the edge of the bluff made by a civil engineering and land surveying firm. This survey locates the line which the complainants contend is the common boundary between the parties.

The respondents, whose adjoining lands lie on the east of complainants, contend that the course of the top of a ridge, on top of the bluff, is the boundary between them. The ridge line is a short distance west of the edge of the top of the bluff. It was surveyed in early 1928 or prior thereto, by a civil engineer and land surveyor named Schoel and it is called the Schoel line hereafter. When the respondent Morgan inspected this line, which his grantor, Joel B. Bearden, pointed out to him as the west property line, before he purchased in 1957, the respondent found some iron pins on the line where the turns or angles are made.

The Schoel line also runs in a northeast and southwest direction and is described as a “traverse of Bluff or Ridge in SWj4 of NWj4 going South from North line of 40.” Making east-west measurements of distances between the two lines of survey, at different points along their course, reveals intervals that vary from almost a contact of the two lines with each other, to distances of as much as seventy-five feet, or possibly more. Thus the respective contentions of the parties result in an overlapping of their properties when the two separate descriptions are sought to be platted with each other. There is no apparent dispute as to the correctness of the survey of either the Schoel line or of the line as contended for by the complainants, or as to where either line is located. The [547]*547dispute is whether the Schoel line or the line constituting the edge of the top of the bluff shall prevail as the true boundary between the parties. The ownership of the land between these two lines is the only property in dispute and neither party claims over or beyond the disputed area on to the remaining land of the other. So, to solve the issue, a determination is necessary of which of the two lines is the boundary.

Under Tit. 7, § 828, Code of Alabama, 1940, our adverse possession statute, the three alternative prerequisites, (1) a deed or other color of title duly recorded for ten years,-or (2) annual listing of the land for taxation in the proper county for ten years, prior to the commencement of the action, if the land is subject to taxation, or (3) title by descent cast or devise from a predecessor in title who was in possession of the land, are not necessary to sustain a claim to title by a coterminous owner, Stokes v. Hart, 273 Ala. 279, 139 So.2d 300; Mintz v. Millican, 266 Ala. 479, 97 So.2d 769; Guy v. Lancaster, 250 Ala. 226, 34 So.2d 10, or to exercise a claim of right by prescription. Ford v. Bradford, 218 Ala. 62, 117 So. 429; Lay v. Phillips, 276 Ala. 273, 161 So.2d 477. But the payment of taxes, in connection with visible acts of ownership done upon the premises, is evidence tending to show claim of ownership and extent of possession. Brannan v. Henry, 175 Ala. 454, 465, 57 So. 967; Baucum v. George, 65 Ala. 259; Green v. Jordan, 83 Ala. 220, 3 So. 513; Knight v. Hunter, 155 Ala. 238, 46 So. 235.

In Alford v. Rodgers, 242 Ala. 370, 6 So.2d 409, this court observed that as between respective claimants a boundary line may be established by adverse possession by which one party may thus acquire land extending to that line which would not otherwise have been his, and thereby may thus cause a strip of land to be attached to his holdings. Brantley v. Helton, 224 Ala. 93, 139 So. 283; Branyon v. Kirk, 238 Ala. 321, 191 So. 345. The statute, Tit. 7, § 828, supra, does not prescribe a limitation on the right acquired by the twenty year prescription period of adverse possession. Jones v. Rutledge 202 Ala. 213, 80 So. 35; Smith v. Smith, 213 Ala. 670, 106 So. 194; Earnest v. Fite, 211 Ala. 363, 100 So. 637; Stearnes v. Woodall, 218 Ala. 128, 117 So. 643. And if a conveyance of his holding is sufficient to include the strip thus acquired, it will pass under it.

The rule as stated in McNeil v. Hadden, 261 Ala. 691, 694, 76 So.2d 160, 162, is as follows:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lilly v. Palmer
495 So. 2d 522 (Supreme Court of Alabama, 1986)
Hagler v. Clark
337 So. 2d 327 (Supreme Court of Alabama, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
253 So. 2d 298, 287 Ala. 544, 1971 Ala. LEXIS 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cloud-v-southmont-development-company-ala-1971.