Cousins v. McNeel

96 So. 3d 846, 2012 Ala. Civ. App. LEXIS 114, 2012 WL 1560236
CourtCourt of Civil Appeals of Alabama
DecidedMay 4, 2012
Docket2110039
StatusPublished
Cited by3 cases

This text of 96 So. 3d 846 (Cousins v. McNeel) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cousins v. McNeel, 96 So. 3d 846, 2012 Ala. Civ. App. LEXIS 114, 2012 WL 1560236 (Ala. Ct. App. 2012).

Opinion

MOORE, Judge.

William Samuel Cousins appeals from a judgment entered by the Autauga Circuit Court (“the trial court”) in favor of Patricia McNeel, declaring that McNeel is the owner of certain disputed property, awarding McNeel damages for Cousins’s cutting of timber from the disputed property, and establishing the boundary line between the property owned by McNeel and that owned by Cousins, and in favor of George Houston, from whom Cousins had acquired his property, on Cousins’s third-party claim against Houston alleging breach of a warranty deed. We affirm in part and reverse in part.

Procedural Background1

■ In February 2007, McNeel sued Cousins, seeking a judgment declaring the boundary line between their adjacent properties. She also asserted claims, pursuant to Ala.Code 1975, § 35-14-2 and § 9-13-6(2), based on Cousins’s alleged cutting and removal of timber from the disputed property, and common-law claims of trespass, negligence, and wantonness; she sought to recover the value of the timber cut and other damages. Cousins denied McNeel’s allegations, asserting that he was the record owner of the disputed property or, alternatively, that he had acquired title to the disputed property through the doctrines of prescriptive or statutory adverse possession. Cousins also asserted a third-party claim against George Houston alleging breach of the warranty deed by which Houston had conveyed property to Cousins in November 2004.

Beginning on April 27, 2011, the trial court conducted a two-day bench trial; ore tenus evidence was presented at that trial. On May 11, 2011, the trial court entered its judgment, stating, in pertinent part:

“The Plaintiff, [McNeel], having pled her cause of action and provided testimony on the following claims, to wit: Trespass by cutting trees, Declaratory Judgment as to land line, Statutory action for cutting of trees, Common law action for recovery for cutting trees, Statutory action for converting cut timber and for Negligence/Wantonness. Upon hearing the testimony, the Court [849]*849considers these claims as well as the Third Party Complaint on the warranty in the deed, this Court finds as follows:
“1. That the true, legal and actual east boundary line between ... [the property of MeNeel] and west boundary line of ... [the property of Cousins] is as follows:
“In the SE Quarter of Section I, Township 17, Range 13
“Commencing at the Southeast corner of Section 4, Township 17, Range 13, Autauga County, Alabama, thence west along the South line of said Section 4, 361.5 feet to the point of beginning; thence North 361.5 feet, thence East to the east line of said Section 4, thence North along the east line of said Section 4 to the Northeast corner of the Southeast Quarter of said Section 4.
“In the NE Quarter, Section 9, Township 17, Range 13
“Commencing in Independence Road 24.32 chains South from the Northwest corner of section 10, Township 17, Range 13, Autauga County, Alabama; thence North 24.32 chains, thence West 7.26 chains to the point of beginning, thence South 20 degrees West 22.80 chains, thence South 15 degrees West 7.50 chains to a point on Independence Road.
“2. Court finds that ... [Cousins] cut timber on ... [McNeel’s] property after notice that there was a dispute with his action of cutting, trespassed upon her land and wantonly damaged the property of [MeNeel] .... [T]his Court finds in favor of ... [MeNeel] and against ... [Cousins] on wantonness, double damage for statutory damage and for the lease loss of revenue and assess her damage at $41,050.00 plus cost of Court.
“3. Court finds no indication, proof or inference that ... Cousins nor ... Houston ever did any act of possession on the disputed property until Cousins trespassed after 2004. Therefore the defense of adverse possession does not apply.
“4. Defendant Cousins is directed to immediately and not after 60 days, remove all markings on the ground, trees, fencing, wire, post, tape and pins on or along any of the disputed area other tha[n] the actual, true, legal line established by this Order.
“5. Court finds that ... Cousins got exactly what he bargained for in the property located east of the line established herein. Therefore, there is no[ ] contribution from Houston to Cousins.”

On June 10, 2011, Cousins moved the trial court to alter, amend, or vacate its judgment. In his motion, Cousins asserted, among other things, that it was unclear from the language of the May 11, 2011, judgment whether the trial court had ruled on Cousins’s breach-of-warranty-deed claim against Houston, that the legal descriptions contained in the trial court’s judgment were unsubstantiated and unsupported by any evidence before the trial court, and that MeNeel was not entitled to damages for the cutting of timber from the disputed property. On August 19, 2011, the trial court denied that motion. Cousins timely filed his notice of appeal.

Evidentiary Background

The evidence presented to the trial court established the following pertinent facts. MeNeel owns property in Autauga County, which her now-deceased husband, Joe MeNeel, Jr., had conveyed to her in 2000; McNeel’s husband had inherited that property in the 1970s from his aunt, Stella [850]*850Underwood. The property had been in Underwood’s family for many years. We refer to this property as “the McNeel property.” It was undisputed that, at the time of the trial, a creek ran near the eastern border of the McNeel property and that a fence was located to the east of the creek, up a hill and some distance away from the creek. Until 2004, Houston owned property lying to the east of and adjacent to the McNeel property. Houston had inherited his property in 1978 from a family member who had owned that property for many years.

In November 2004, Cousins purchased Houston’s property for $500,000. The creek and the fence referenced above, which lied at or near the eastern boundary of the McNeel property, was located at or near the western boundary of Cousins’s property. Whether the boundary line between the two properties was located at the creek or at the fence is at the center of this dispute. The property lying between the creek and the fence is hereinafter referred to as “the disputed property”; according to trial testimony, the disputed property totaled approximately 30 acres.2

The following language was included in Cousins’s purchase agreement:

“Seller/s agree to sell and convey to Purchaser/s and the Purchaser/s agree to purchase from Seller/s upon the following terms and conditions, the following described real property, in its AS IS condition: Approximately 250 acres and Residence, Township 17 North, Range 13 East, Sections 3, 4, 9, and 10 in Mulberry Community of Autauga County. Actual acreage must be verified by survey.”

A copy of the deed by which Houston had obtained title to the property was attached to the purchase agreement. Houston’s real-estate agent, Mike Vaughn, arranged for surveyor Ronald Burke to perform the required survey.

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Cite This Page — Counsel Stack

Bluebook (online)
96 So. 3d 846, 2012 Ala. Civ. App. LEXIS 114, 2012 WL 1560236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cousins-v-mcneel-alacivapp-2012.