McKinney v. Yielding

426 So. 2d 423, 1983 Ala. LEXIS 3989
CourtSupreme Court of Alabama
DecidedJanuary 21, 1983
Docket81-455
StatusPublished
Cited by1 cases

This text of 426 So. 2d 423 (McKinney v. Yielding) 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
McKinney v. Yielding, 426 So. 2d 423, 1983 Ala. LEXIS 3989 (Ala. 1983).

Opinion

TORBERT, Chief Justice.

The plaintiffs in the case below were Walter C. and Louise Yielding, who are co-owners of a tract of land in Marion County, Alabama. They brought suit to establish the boundary line between their land and the lands of the defendants. The defendants were: Taitón and Avis Kelley, who owned the land immediately to the east of the Yielding land, James Archie and Lottie Cox, who owned a parcel of land immediately to the north of the Yielding land, and Walter C. and Clara M. McKinney, who also owned a parcel of land immediately to the north of the Yielding land.

The plaintiffs below claimed as their boundary line an old wire fence which ran the length of the eastern boundary and then turned west and ran the length of the northern boundary. The fence was in various stages of disrepair along these lines; however, it could be identified along the eastern and northern edges of plaintiffs’ land. The trial court, after hearing evidence presented ore terms, found for plaintiffs and established the boundary at the fence along the eastern and northern edges of the property. The defendants appeal that decision to this Court.

This Court has stated the following standard of review in boundary line disputes:

“In an appeal from a judgment establishing a boundary, such judgment will be affirmed if, under any reasonable aspect of the case, the decree or judgment is supported by credible evidence; that is to say, the trial court will not be reversed unless there is a clear and decided preponderance of the evidence against its judgment.”

McKnight v. Price Farms, Inc., 382 So.2d 560, 562 (Ala.1980). This is especially important in boundary line cases because of the frequent references to documentary evidence such as maps, and the references in the record to these exhibits. See, Pinson v. Veach, 388 So.2d 964 (Ala.1980). In Pinson, supra, we stated: “Where testimony is taken ore tenus in a suit to fix a boundary line, the findings of fact entered by the trial judge will be sustained if there is any credible evidence to support them.” 388 So.2d at 968.

The Yielding land lies in the NE 1/4 of the SW 1/4 of Section 8, Township 10 South, Range 13 West, Marion County, Alabama. Plaintiffs Yielding produced evidence that prior to 1918 their land was held by Harlan Lewis. From 1918 to 1948 the property was owned by Henry and Polly Bobo. In 1948 the Bobos conveyed the property to Archie Wiginton, who held it until 1951. In 1951 Wiginton conveyed the land to Andy Rayburn, who held it for five years. In 1956 Rayburn conveyed the property to Norma Lou and Roy Brooks, who conveyed the land in question to the Yieldings in 1959.

The fence on the east of the property lies east of the government survey lines by which the plaintiffs’ land is described in their deed, and the fence on the north lies north of the government survey lines by which their property is described. All three of the boundary disputes before the Court in this case resolve around a claim of title to the land in question by adverse possession. Each of these disputes will be examined in turn.

I

The first dispute for our consideration concerns the eastern boundary of the Yielding land. Immediately to the east of the Yielding land lies the tract of land currently owned by appellants Taitón and Avis Kelley.

The chain of title to the Kelley land begins with a patent from the United States government to Benjamin Kelley issued in 1913 for the NW 1/4 of the SE 1/4 of Section 8, Township 10 South, Range 13 West, Marion County, Alabama. Benjamin Kelley held the land from 1913 to the date of his death in 1948. In his will he gave a life estate in the property to his widow Annie Kelley and a remainder in fee to appellants Kelley. Annie Kelley held the property from 1948 to 1973 and upon her death in 1973, the Kelleys became the owners in fee and remained the owners at the [425]*425time this suit was instituted in February of 1981.

Along the eastern boundary of the Yielding land, an old wire fence extended the length of the Yielding-Kelley boundary. According to a survey made in March of 1981 by Jack Loden, the fence lies east of the government survey line which describes the land in the Yielding deed. At issue in this portion of the appeal is this strip running north and south and lying between the line, as surveyed by Loden in 1981, and the old fence running from a “hickory tree” on the north to a “red oak tree” on the south.

The trial court made the following finding concerning this boundary:

“That the true boundary line between the lands of the Plaintiffs N.R. Yielding and Louise Yielding, Gary Yielding and Ann Yielding and the lands of the Defendants Taitón Kelley and Avis Kelley is described as follows, to-wit:
“ ‘Begin at a hickory tree which has old wire going west and north therefrom, which is near the NE corner of the NE 1/4 of SW 1/4 of Section 8, Township 10 South, Range 13 West; go thence south along an old fence a distance of approximately 1320 feet to a red oak tree which has old wire running west and north therefrom, which said point is the southerly terminus of the coterminous boundary between the lands of the Plaintiffs and the lands of the Defendants Taitón Kelley and Avis Kelley.’”

We have reviewed the record, including the exhibits introduced into evidence and affirm this portion of the trial court’s decree.

The deed from Norma Lou and Roy Brooks to the appellees describes the land by the governmental survey as the “NE 1/4 of the SW 1/4 of Section 8, Township 10 South, Range 13 West, containing 40 acres, more or less.” This Court has stated: Lewis v. Parsons, 263 Ala. 647, 649, 83 So.2d 220, 222 (1955). There was no evidence of any agreement between the parties. The appellees claim the land lying east of the government survey line by adverse possession rather than under the description contained in the deed.

“[W]e know of no authority which authorizes a court in a case of this kind to fix a boundary line different from that called for in the muniments of title unless a different line has been established by adverse possession or by agreement.”

The Kelleys argue that the Yieldings could not claim title by adverse possession by themselves or their predecessors in title because of the intervening life estate of Annie Kelley. Specifically they state that adverse possession cannot run against a re-mainderman during the lifetime of the life tenant, citing Hinesley v. Davidson, 335 So.2d 380 (Ala.1976), and Hammond v. Shipp, 292 Ala. 113, 289 So.2d 802 (1974). However, once adverse possession begins to run, the fact that there is a life tenant and subsequently a remainderman, does not toll the running of the time. Kidd v. Browne, 200 Ala. 299, 76 So. 65 (1917). This rule was applied by this Court to a boundary line dispute in Kubiszyn v. Bradley, 292 Ala. 570, 298 So.2d 9 (1974).

The question becomes, then, whether there was before the trial court sufficient evidence for a finding that the plaintiffs’ predecessor in title possessed the land adversely prior to the beginning of Annie Kelley’s life estate in 1948. At trial, Archie Wiginton, one of the plaintiffs’ predecessors in title, testified that when he purchased the property in 1948 the fence was standing on the east side of the land.

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Bluebook (online)
426 So. 2d 423, 1983 Ala. LEXIS 3989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckinney-v-yielding-ala-1983.