
    Frederick ROHRER, et al. v. John ALLEN and Hilma Allen.
    80-901.
    Supreme Court of Alabama.
    April 23, 1982.
    Rehearing Denied June 11, 1982.
    W. Donald Bolton, Jr., of Foster, Brackin & Bolton, Foley, for appellants.
    Charles C. Partin of Stone, Partin, Gra-nade & Crosby, Bay Minette, for appellees.
   PER CURIAM.

The defendants appeal from an adverse judgment in the plaintiffs’ action to quiet title to a parcel of land which plaintiffs claimed by adverse possession by prescription. See Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965). We affirm.

The land in question consists of ten acres located in Baldwin County. The evidence for the plaintiffs showed that the defendants, Frederick Rohrer and others, derived legal title through one Walter Pederson, and that Rohrer and Pederson had paid the taxes on the parcel. In 1940 John and Hilma Allen, husband and wife, moved onto the land. They cleared one acre in the northwest corner and built a small log cabin, and thereafter cleared about an acre per year. Between 1940 and 1958, they continuously used about one and one-quarter acres around the house site and rotated the planting of a garden among the remaining acreage. The Allens sharecropped some of the land from 1940 until 1958, when they moved to Fairhope. A mentally retarded relative of John Allen’s lived in a log barn for most of the time the Allens were not living at the place. The Allens moved to Fairhope for economic necessity, and then to Robertsdale, and to Elsanor. The evidence is not disputed that they lived away from the land for approximately five years. Shortly after they moved their log cabin burned, destroying the possessions they had left there. During this period of their absence, nevertheless, they visited the place approximately every other week and sometimes every week. There was no dwelling house on the property from 1958 until around 1963, although the log barn was there. During that period, a relative who lived nearby used a portion of the property for a pea patch. In 1963, they began building another house on the site of the log cabin, and between 1963 and 1978, the property was leased by them to others for farming. The Allens’ mailbox, bearing their name, had been located on the road fronting the land for forty years, and it was established that the property had a community reputation as the “Allen place.” Additionally, there was testimony to the existence of fences which, although they did not fully enclose the land, were moved from time to time to protect rotating vegetable gardens from stock running at large.

In its decree the trial court found that the plaintiffs have been in the “actual, open, hostile, notorious, continuous, and exclusive possession of the tract ... since the 1940’s.... ” On this appeal the defendants challenge that finding as having no factual basis; that is, that the evidence does not support a finding that the plaintiffs’ possession was continuous over the necessary twenty-year period. Our study of the record reveals that there was substantial evidence to support the trial judge’s determination. The most critical issue is whether, as a matter of law, the evidence showed a continuity of possession.

The following evidence was given at trial to show that, even though the Allens did not reside on the property from 1958 to 1963, they still exercised dominion and possession over the property during that period:

(1) They went back and visited the land practically every weekend. On those visits they would cut grass and clean up and many times camped on the land.

(2) Mr. Allen, from time to time, returned to the land to check on things and to visit his brother.

(3) When the family moved to Fairhope, they left their furniture and possessions in the cabin located on the land, until the cabin burned and the possessions therein were destroyed.

(4) After the cabin burned, the family cleared away the rubbish in preparation to build a new house.

(5) The Allens’ log barn continued to exist on the property with Mr. Allen’s brother, Jason, living in it part of the time.

(6) The Allens’ mailbox, bearing their name, remained on the road fronting the property.

(7) One neighbor testified that the Allens had farmed the land practically every year since they first moved there, and that they had things planted on the land while they were gone.

(8) Another neighbor testified that he saw the Allens around the property so much that he did not know they had ever moved from it.

(9) A third neighbor testified that the Allens had always used the land in the same way as the surrounding landowners, and that it was his understanding that the Al-lens had continued to own the place during the period that they didn’t actually reside there.

In Turnham v. Potter, 289 Ala. 685, 690, 271 So.2d 246 (1972), this Court stated:

“It is not necessary to physically reside upon land to establish title by adverse possession. Moorer v. Malone, 248 Ala. 76, 26 So.2d 558 (1946). Land need only be used by an adverse possessor in a manner consistent with its nature. Alabama State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174 (1910). As was said in Matthews:
‘[Ojpenness and notoriety and exclusiveness of possession are shown by such acts in respect of the land in its condition at the time as comport with ownership— such acts as would ordinarily be performed by the true owners in appropriating the land or its avails to his own use * * *.’ 168 Ala. 201, 53 So. 174.” (Emphasis added.)

A similar principle was stated by this Court in the case of Fuller v. Yancey, 281 Ala. 126, 129, 199 So.2d 666 (1966), wherein we stated:

“We also observed in Morris v. Yancey, 267 Ala. 657, 104 So.2d 553 (1958):
“ ‘In regard to the evidence of the defendant going to show possession of the entire section, we observe that the kind of possession is determined by the condition of the land, not with reference to its being changed into another state, but its then present state. Openness, notoriety and exclusiveness are shown by acts which at the time, considering the state of the land, comport with ownership such as would ordinarily be done by an owner for his own use and for the exclusion of others. Kidd v. Browne [200 Ala. 299, 76 So. 65], supra.’
******
“It appears from the evidence that defendants treated the land in every respect as the owners thereof, or at least the jury could have so found from the evidence. This evidence tended to show openness, notoriety, and exclusiveness by acts which at the time, between 1927 — 49, could, considering the state of land, comport with ownership, such as would ordinarily be done by an owner for his own use to the exclusion of others.”

This Court stated further in Kubiszyn v. Bradley, 292 Ala. 570, 575, 576, 298 So.2d 9 (1974):

“The erection and maintenance of a fence is one of the clearest symbols of possession. Graham v. Hawkins, 281 Ala. 288, 202 So.2d 74 (1967). Cutting of timber, although it may not, standing alone be sufficient, is one factor to consider. Cf. Lay v. Phillips, 276 Ala. 273, 161 So.[2d] 477 (1964); Smith v. Brown, [282 Ala. 528, 213 So.2d 374] supra. Cultivation is an act of possession or ownership, although not conclusive in all cases. Cambron v. Kirkland, 287 Ala. 531, 253 So.2d 180 (1971). In sum, to constitute an actual possession of land, the question is whether the adverse claimant has put the land to such use as it is reasonably adapted. James v. Mizell, 289 Ala. 84, 265 So.2d 866 (1972); Alabama State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174 (1910). Although possession must be continuous, it is not necessary that each type act be continuous. It would be unreasonable to require a landowner to use continuously all the land enclosed within his fences. James v. Mizell, supra.
“In applying these principles to this case, our oft-stated rule of review is that when the trial court has heard the evidence orally, its decree is favored with a presumption of correctness, which will not be disturbed on appeal unless plainly erroneous or manifestly unjust. Morgan v. Larde, 282 Ala. 426, 212 So.2d 594 (1968); Butts v. Lancaster, 279 Ala. 589, 188 So.2d 548 (1966). When so viewed, we think there is ample evidence which would establish that the Bradleys and their predecessors in title have held adverse possession of the disputed property east of the road and up to the fence line for a period of considerably more than twenty years.” (Emphasis added.)

In view of the principles set out in these cases, we are of the opinion that under the evidence, the trial court could have found that the Allens had established adverse possession under the facts of this case.

“ ‘Where the trial court makes findings after hearing witnesses ore tenus, every presumption will be indulged in favor of the court’s findings, and its findings will not be disturbed on appeal unless they are found to be palpably wrong.’ Russell v. Russell, 361 So.2d 1053, 1054 (Ala.1978).”

The finding in this case is not palpably wrong, manifestly unjust or contrary to the great weight of the evidence offered at trial; therefore, the judgment entered based upon that finding of fact is due to be affirmed.

AFFIRMED.

MADDOX, FAULKNER, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., and JONES and BEAT-TY, JJ., dissent.

BEATTY, Justice

(dissenting):

I respectfully dissent.

In 1940 John and Hilma Allen, husband and wife, moved onto the land in question. They cleared one acre in the northwest corner and built a small log cabin, and thereafter cleared about an acre per year. Between 1940 and 1958 they never used the entire parcel at any one time, but rotated the planting of a garden. The only part of the parcel continuously used was about one and one-quarter acres around the house site. The Allens did sharecrop some of the land from 1940 until 1958 when they moved to Fairhope. A mentally retarded relative of John Allen’s lived in a log barn for most of the time the Allens were not living at the place. They removed to Fairhope from economic necessity, and then to Robertsdale and to Elsanor, and so they lived away from the land for approximately five years. Shortly after they moved, their log cabin, which had rotted down, burned, destroying the possessions they had left there. During this period of their absence, nevertheless, they visited the place approximately every other week and sometimes every week. There was no dwelling house on the property from 1958 until around 1963, although the log barn was there. During that period no one used the property except for one relative who lived nearby who had a small pea patch on part of the land. At the end of that period they began building another house on the site of the log cabin, and between 1963 and 1978 the property was leased by them to others for farming. The Allens’ mailbox, bearing their name, had been located on the road fronting the land for forty years, it is true, and it was also established that the property had a community reputation as the “Allen place.” There was also testimony to the existence of fences which, although they did not fully enclose the land, were moved from time to time to protect rotating vegetable gardens from stock running at large.

In its decree the trial court found that the plaintiffs have been in the “actual, open, hostile, notorious, continuous, and exclusive possession of the tract ... since the 1940’s.... ” On this appeal the defendants have challenged that finding as having no factual basis; that is, that the evidence does not support a finding that the plaintiff’s possession was continuous over the necessary twenty-year period. My study of the record lends support to that position.

The law places a strict burden upon one who claims title by adverse possession because all presumptions and intendments favor the title, and possessions are not presumed to be hostile to the title. Rabren v. Mudd, 285 Ala. 531, 234 So.2d 549 (1970); Dothard v. Denson, 72 Ala. 541 (1882). Each of the elements, correctly described by the trial court, must be proved, and proved by clear and convincing evidence. Machen v. Wilder, 283 Ala. 205, 215 So.2d 282 (1968); Raper v. Belk, 276 Ala. 371, 162 So.2d 466 (1964); Walthall v. Yohn, 252 Ala. 262, 40 So.2d 705 (1949). The element of continuity is as essential as any other of adverse possession:

“Indeed, ‘the continuity of the adverse possession is the very essence of the doctrine and policy of the statutes of limitation,’ for ‘whenever a party quits the possession the seisin of the true owner is restored, and a subsequent wrongful entry constitutes a new disseisin.’ ” (Snow v. Bray, 198 Ala. 398, 73 So. 542, quoting from Henry v. Brown, 143 Ala. 446, 39 So. 325.)

And in Hoyle v. Mann, 144 Ala. 516, 522, 41 So. 835 (1905), this Court, writing to the element of continuity, stated:

“The very gist of the claim by adverse possession is that for [ten] years the claimant has occupied the land so openly, visibly, adversely, notoriously, and continuously that the owner is presumed to have known it. It would be a strange principle then, which would allow a man to go on the land, set up adverse possession, and then leave it, and claim that his possession remained adverse, merely because he intended to return.”

The Court went on to require that one leaving the land must “keep his flag flying and present a hostile front to adverse pretensions” leaving “under circumstances indicating that he has not left possession.” If a person evacuated a place, “leaving no indicia of a continuing possession,” observed this Court in Perry v. Lawson, 112 Ala. 480, 484, 20 So. 611 (1895), “this would be an abandonment of his possession.” (Emphasis added.) Of course, the elements of adverse holding are manifested “by such acts in respect of the land in its condition at the time as comport with ownership — such acts as would ordinarily be performed by the true owner in appropriating the land or its avails to his own use.” Alabama State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174 (1910). So the controlling question before us is whether the facts disclosed, which are essentially undisputed, are sufficient as a matter of law to establish acts which meet the requirement of continuity.

Regardless of what some neighbors thought the Allens were doing, by Mrs. Allen’s own testimony it is clear that the element of continuity was absent during the period between 1958 and sometime around 1963. She moved to Fairhope with the children in April of 1958 and remained there seventeen months. Mr. Allen lived with her there beginning at the end of the following summer and lived with her two years, and at the end of that period they moved to Robertsdale where they lived for a few months. At the end of that period they moved to Elsanor where they built a house with money furnished by two of the children. They lived in Elsanor for something less than two years, according to her testimony, and moved back to the farm sometime between 1961 and 1963 during the month of July.

During the period of time they had vacated the property, their visits from time to time back to the farm were described as “camping,” sitting in the backyard by the log barn, building a fire and cooking snacks. During part of that time her brother-in-law (who had the adjoining place) planted snap-beans in a corner on the west side, just using it as a little garden spot. And for some indeterminate time during their absence another brother-in-law lived on the property when not in the Veterans Administration Hospital at Gulfport and when not with them in Fairhope. They had no lease agreement with him because “he was family.” Cf. Kerlin v. Tensaw Land & Timber Co., Inc., Ala., 390 So.2d 616 (1980).

The fact that the mailbox remained while they were away establishes no element of continuity. There is no evidence that it was anything but a container for the receipt of mail, and the record fails to disclose that while they were away from the land they received any mail through it. Obviously they did not because they lived somewhere else, first Fairhope, then Roberts-dale, and later Elsanor.

It is clear that any claim of title in the plaintiffs under the twenty-year prescription period beginning in 1940 must fail because of the evidence showing that they vacated the property in 1958. And while the place was used for farming between 1940 and 1958, and between 1963 and 1978, they neither planted nor farmed the place between 1958 and 1963, but only camped occasionally around the home place. Thus, their use of the land was distinctively different than that of the other periods. Such a “possession” was constructive only, and cannot support adverse possession. Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1973). But even assuming that the occasional returns constituted acts which “flew their flag,” it is obvious that any such indi-cia of possession were not continuous. Accord, Tensaw Land & Timber Co. v. Rivers, 244 Ala. 657, 15 So.2d 411 (1943). It is equally clear that the twenty-year prescriptive period did not run in plaintiffs’ favor from 1963 or thereabouts until this suit was filed in May 1980.

Under this state of the record, therefore, it was error for the trial court to deny the defendants’ motion for a directed verdict and motion for judgment notwithstanding the verdict. For that reason the judgment in favor of the plaintiffs on their complaint should be reversed.

The defendants’ counterclaim in the form of an ejectment action was likewise disposed of erroneously. The record discloses that the defendant Rohrer adduced evidence of title to the parcel which was undisputed. The defendants should be allowed the opportunity to proceed with proof of damages under their ejectment counterclaim if they so desire.

TORBERT, C. J., and JONES, J., concur.  