Horton v. Kroner

575 So. 2d 1026, 1990 Ala. LEXIS 1103, 1990 WL 238542
CourtSupreme Court of Alabama
DecidedDecember 14, 1990
Docket89-0283, 89-0525
StatusPublished

This text of 575 So. 2d 1026 (Horton v. Kroner) 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
Horton v. Kroner, 575 So. 2d 1026, 1990 Ala. LEXIS 1103, 1990 WL 238542 (Ala. 1990).

Opinion

ON APPLICATION FOR REHEARING

MADDOX, Justice.

The opinion in this case dated October 26, 1990, is withdrawn, and the following opinion is substituted therefor.

George W. and Mary Jo Kroner, husband and wife, sued for a declaratory judgment, requesting the trial court to resolve a dispute with Charles and Georgia Carol Horton, owners of adjoining property, concerning the ownership of a strip of land. On this strip of land, adjacent to the Kroners’ property, was a dirt road that provided access to the Hortons’ property. The Hor-tons claimed ownership of the strip of land through adverse possession, based on their continued use of the dirt road, and the location of a certain fence line. The trial court determined that the description in the Kroners’ deed included the disputed strip of land and it found that the Hortons had failed to prove ownership by adverse possession; it declared that the Kroners owned the land, in fee simple, subject only [1028]*1028to a private easement to the Hortons, their heirs, and assigns, for ingress to and egress from their property.

The Hortons appealed, maintaining that the trial court erred in determining that they had failed to acquire ownership of the land through adverse possession. The Kroners cross-appealed, arguing that the trial court erred by implicitly forbidding them to place a gate across the dirt road.

The trial court based its findings on ore tenus evidence, and, thus, its findings are presumed correct and will not be disturbed on appeal if supported by the evidence or by any reasonable inferences therefrom, unless they are plainly and palpably erroneous or manifestly unjust. Saunders v. Florence Enameling Co., 540 So.2d 651, 652 (Ala.1988). When ore tenus evidence is presented, “the trial court’s judgment ... is presumed correct and need only be supported by credible evidence,” and this presumption “is particularly strong in boundary line disputes and adverse possession cases.” Bell v. Jackson, 530 So.2d 42, 44 (Ala.1988).

The issues on appeal are: (1) whether the trial court properly determined that the Kroners owned the property in dispute; 2) whether the trial court properly determined the location of the Kroner/Horton boundary line; 3) whether the Hortons suffered damage from the Kroners’ refusal to allow telephone lines to be buried along the dirt road; and (4) whether the trial court’s amended judgment forbids the Kroners from erecting a gate across the dirt road.

In resolving the initial dispute over the ownership of the land, the trial court determined that the Kroners possessed record title to the property. This ruling is amply supported by the record. The trial court examined the deeds of the parties and stated in its October 23, 1989, amended judgment:

“8. The deeds to the plaintiffs, George W. Kroner and Mary Jo Kroner, included the dirt roadway whereas the deeds to the defendants, Charles Horton, Jr. and Georgia Carol Horton, did not encompass nor include the dirt roadway.”

The burden rests upon the Hortons to prove certain elements in establishing adverse possession. That burden is a heavy one. The Hortons must show by clear and convincing evidence that their possession has been actual, hostile, open, notorious, exclusive, and continuous for the statutory period. Tidwell v. Strickler, 457 So.2d 365 (Ala.1984). Rogers v. Moore, 527 So.2d 122, 124 (Ala.1988). The trial court found that the Hortons had not established the elements of adverse possession. This finding is adequately supported by the record and will not be disturbed on appeal.

The second issue involves a dispute over the line dividing the Hortons’ property and the Kroners’ property. The Hortons cite Brantley v. Helton, 224 Ala. 93, 139 So. 283 (1932), asserting that the trial court inappropriately determined the boundary line by adhering to the description in the Kroners’ deed rather than setting it along an old fence line that the Hortons say separated the property. In Brantley, the party claiming by adverse possession had erected a fence on the adjoining landowner’s property, and his action in doing so was hostile and adverse to the adjoining landowner. There, this Court found that the party erecting the fence had title to the disputed land, stating, “When the parties agree upon the location of a line fence, or one of them proceeds to inclose his property, and erects a fence intended as a line fence, [and] holds actual and exclusive possession to it as such, his possession is adverse, and, if continued for ten years, ripens into title.” 224 Ala. at 96, 139 So. at 285.

Here, the trial court determined that the Kroners’ predecessor in title had placed the fence on his own property and that the fence was on the Kroners’ side of the boundary line. Unlike the party claiming by adverse possession in Brantley, the Hortons did not erect the fence nor did they commit any other act of adverse possession. Furthermore, the evidence reveals that the Kroners never recognized the fence, which is now dilapidated, as the boundary line and never agreed with the Hortons that the fence represented such a [1029]*1029boundary; consequently, the trial court could have found that the Hortons’ use of the property was strictly permissive. Thus, the trial court determined that the boundary line described in the Kroners’ deed controlled and that the fence line did not represent the boundary. This ruling by the trial court is amply supported by the evidence.

The third issue presented is whether the trial court correctly determined that the Hortons were not entitled to damages as a result of the Kroners’ refusal to allow the installation of telephone lines along the dirt road. The Hortons cite M & M Investment Co. v. Regency Oaks Apartments, 517 So.2d 591, 596 (Ala.1987), for the proposition that “the right of easement carries with it the right of a utility company to construct and maintain its facilities upon and over the property.” That case stated, however, that this right exists “unless the exercise of this right is so arbitrary as to unnecessarily interfere with the owner’s right of reasonable use of his own property.” 517 So.2d at 596.

The Kroners contend that burying the cable along the dirt road would result in erosion. Moreover, the trial court found that the Kroners did not refuse the Hor-tons access to the utility. Rather, by erecting a single telephone pole between the Kroners’ property and the Hortons’ property, the telephone company was able to utilize existing telephone lines to provide service to the Hortons. As the trial court correctly determined, the Kroners’ decision against burying cable along the dirt road neither prevented the Hortons from receiving telephone service nor caused the Hor-tons any damage. The trial court’s determination is adequately supported by the evidence.

The issue presented by the Kroners on cross-appeal is whether they may erect a gate across the dirt road. The trial court’s judgment of June 30, 1989, allowed the Kroners reasonable control of the easement “by the installation of fencing and a gate.” However, the trial court’s October 23, 1989, amended judgment simply states that “neither of the parties ... shall unreasonably interfere with the other party’s use of the easement.” (Emphasis added.) The Kroners believe that the change of language implies that they may not erect a gate.

In Simpson v. Harbin, 447 So.2d 189 (Ala.1984), this Court addressed facts very similar to those presented here.

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Related

Tidwell v. Strickler
457 So. 2d 365 (Supreme Court of Alabama, 1984)
Rogers v. Moore
527 So. 2d 122 (Supreme Court of Alabama, 1988)
M & M INV. CO. v. Regency Oaks Apartments
517 So. 2d 591 (Supreme Court of Alabama, 1987)
Bell v. Jackson
530 So. 2d 42 (Supreme Court of Alabama, 1988)
Saunders v. Florence Enameling Co., Inc.
540 So. 2d 651 (Supreme Court of Alabama, 1988)
Simpson v. Harbin
447 So. 2d 189 (Supreme Court of Alabama, 1984)
Self v. Hane
79 So. 2d 549 (Supreme Court of Alabama, 1955)
Brantley v. Helton
139 So. 283 (Supreme Court of Alabama, 1932)

Cite This Page — Counsel Stack

Bluebook (online)
575 So. 2d 1026, 1990 Ala. LEXIS 1103, 1990 WL 238542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horton-v-kroner-ala-1990.