
    E. H. DARBY v. Harvey F. ROBBINS, et al.
    79-955.
    Supreme Court of Alabama.
    Sept. 15, 1981.
    Rehearing Denied Feb. 5, 1982.
    Robert L. Potts and T. Michael Putnam of Potts, Young & Blasingame, Florence and Harold V. Hughston of Kirk, Rather & Hughston, Tuscumbia, for appellant.
    J. A. Keller of Keller & Cochran, Florence, for appellees.
   FAULKNER, Justice.

This is an appeal from a judgment in the Circuit Court of Lauderdale County determining a boundary line dispute and granting prescriptive public easement rights in a road in favor of plaintiffs, Harvey Robbins and George Pillow, Jr.

The facts are lengthy and hotly contested. In 1965, defendant Darby purchased the land known as the Adams tract and is the present owner. Plaintiffs, Robbins and Pillow, are the present owners of the land known as the Baker tract, purchased by them from Virginia Baker in 1978. The Baker property consists of three parcels, A, B, and C, respectively, from north to south, bounded by Wilson Lake on the east and bounded by Darby’s land, the Adams tract, on the west. This suit involves the determination of the boundary line between the Adams and Baker tracts and of the right of public access to the Baker property across the Adams tract.

The recorded chains of title to both properties place the boundary line at the section line between Sections 4 and 5, Township 3 South, Range 10 West, with the Adams tract in Section 5 and the Baker tract in Section 4. Plaintiffs, Robbins and Pillow, contend that the true boundary line is a thirty-year-old fence located over on the Adams tract, west of the section line purportedly dividing the two properties. The fence runs the length of parcels A and B of the Baker tract, but does not extend along tract C.

Robbins and Pillow further contend that their predecessor in title purchased the Baker tract in the early 1950’s relying upon the Collier survey which they contend has the section line and the thirty-year-old fence line in the identical position. Moreover, Mrs. Baker stated in her sworn affidavit that she and her husband had been in possession and control of the disputed strip during their entire period of ownership of the Baker tract, and that they had continually claimed up to the fence.

Darby, however, claims the section line as the true boundary line. He contends that the Collier survey was made in 1958, several years after Baker had purchased the property, and that the survey refers only to the section line with no mention of the fence. The fence was constructed by Darby’s predecessor in title and Darby has maintained the fence.

The evidence is clear that the disputed strip is thickly wooded. Plaintiffs elicited testimony to the effect that Baker and his tenants had adversely possessed to the fence through acts of woodcutting, mowing, and exploring paths throughout the area. Darby introduced testimony that his cattle had grazed on the strip and that his sons had hunted on it.

The disputed road runs across Darby’s pasture (Adams tract), entering its western end through a gate and ending east of the disputed fence. As to the nature of the road (public v. private), plaintiffs offered testimony to the effect that numerous public servants (meter men, mailmen, utility men, etc.) used the road regularly for access to the Baker tract, members of the public used the road to get to the points for recreational purposes, the county regularly graded the road, the gate was more often open than closed, and the road itself was 18 to 20 feet wide.

Darby introduced evidence to the effect that the use of the road was permissive and that Baker was aware of the permissive use. A retired county and state highway engineer testified that it was policy not to cross a cattle gap unless the gap was constructed across a public road, in which case workers were instructed to “blade it out” if owners failed to remove the gap after notification. Darby’s gap was never bladed out. Darby introduced further testimony that the actual used or traveled portion of the road was only 8 to 10 feet wide.

On July 17, 1979, plaintiffs filed suit alleging that the road through the Adams tract is a public road and that the fence line is the boundary between the two tracts. After numerous motions and hearings and after a “view” by the trial judge, the court found for plaintiffs and entered judgment. Darby appeals. This Court granted a stay of judgment pending appeal.

The trial court made specific findings of fact and entered judgment accordingly. We quote, in pertinent part, the lower court’s findings and judgment:

4. It is undisputed that there is now an access road, referred to by various terms such as “road,” “pig trail,” “pasture lane,” “field road,” “trail,” and “path,” across the Adams property to the Baker property. Aerial photographs in evidence indicate the existence of some sort of access road across the Adams property to the Baker property as early as 1934. This road had been used for access by the owners of the Baker property, persons leasing the Baker property, guests, and invitees. This road has been used by mail carriers, garbage collectors and meter readers. This road has been graded on occasions by employees of the state or county road departments. The Court specifically finds that this road has been in existence and use by members of the public, as well as the owners of the Baker property, for over forty years.
5. The road across the Adams property to the Baker property is eighteen feet wide, including any necessary ditches.
6. Prior to Pillow and Robbins obtaining the Baker property, the record title of the boundary line between the Baker property and the Adams property was the section line dividing Sections 4 and 5, in Township 3 South, Range 10 West, Laud-erdale County, Alabama. A fence was constructed in the early 1950’s by a Mr. Buffler who leased the Adams property. This fence ran generally north and south, but it was situated to the west of the section line between sections 4 and 5.
9. On tracts A and B of the Baker property the Court finds that the plaintiffs, Pillow and Robbins, and their predecessors in interest, had the open, notorious, adverse, hostile, continuous and peaceful possession of the property from Wilson Lake to the Buffler fence for more than twenty years preceding the filing of this action.
10. On tract C of the vacant property the Court finds that the boundary line is the section line between Sections 4 and 5 in Township 3 South, Range 10 West, Lauderdale County, Alabama.
Therefore, it is ORDERED, ADJUDGED, and DECREED as follows:
1. The Court declares that the boundary line between the Adams property, owned by the defendant E. H. Darby, and the Baker property, owned by the plaintiffs, Harvey F. Robbins and George D. Pillow, Jr., is the old fence line along tract A and tract B of the Baker property. The Court further declares that the boundary line between the parties along tract C of the Baker property is the section line dividing Sections 4 and 5 in Township 3 South, Range 10 West, Laud-erdale County, Alabama.
2. The Court reserves the right to appoint a registered land surveyor, not previously testifying as a witness in this cause, to make a survey of the lines in question and to present to the Court the correct legal description of the fence along sections A and B of the Baker property and of his or her opinion as to the correct location of the section [line] between Sections 4 and 5 in Township 3 South, Range 10 West, Lauderdale County, Alabama, along tract C of the Baker property.
3.The road serving the plaintiffs’ property across the Adams property, owned by the defendant E. H. Darby, is a public road, the plaintiffs have a right to free access, use and maintenance of this road. Further, the Court declares that the road has a maximum width of 18 feet including its travel portion and any ditches or shoulders. The defendant is enjoined and restrained from interfering with the use, maintenance and upkeep of the road and free passage of the plaintiffs and members of the public over such road.

As evidenced by the preceding discussion, the parties are in complete disagreement as to the facts and applicable law. Counsel for both sides have favored us with excellent briefs — both in factual summary and legal analysis. As Justice Bloodworth aptly pointed out in Blackwell v. Harris, 354 So.2d 7 (Ala.1978): “This is the classic case with which this Court has been confronted many, many times, the fence line v. a quarter section line — the adverse possessor v. the record title holder.”

Considering the nature of this case, therefore, we conclude, on the authority of Casey v. Keeney, 290 Ala. 94, 274 So.2d 68 (1973), set out in pertinent part below, that the ore tenus rule is applicable:

Although there was a conflict in the testimony in regard to some of the findings of the trial court, there was testimony to support all of the court’s findings in regard to appellee’s possession of the land in dispute.
The rule has been applied in boundary line disputes that questions of adverse possession are questions of fact properly determined by the trier of facts, and that the determination so made, where the evidence is taken orally, as here, is favored with a presumption of correctness and will not be disturbed on appeal unless plainly erroneous or manifestly unjust.
Moreover, as mentioned before, the trial court in accordance with permissible practice, made a personal inspection of the property before making its finding of fact. Hence, the decree is reviewed here as if it were a verdict of a jury, not to be disturbed unless it is plainly and palpably contrary to the weight of the evidence, [citations omitted]

The preceding authority applying the ore tenus rule is equally dispositive of the prescriptive public easement issue.

In view of our preceding holding, we find it unnecessary to address separately each contention raised by counsel for appellant Darby. Two issues in particular merit attention. First, contrary to Darby’s contentions, a fence does not have to be constructed and maintained by the party claiming by adverse possession in order to be an outstanding symbol of possession. Jordan v. Miller, 361 So.2d 1080 (Ala.1978). Second, Darby’s contentions that the ore tenus rule should not be applied because of alterations to the property between the time suit was filed and the time the judge viewed the property are without merit. There is no evidence of any abuse of discretion by the judge.

AFFIRMED.

MADDOX, JONES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and ALMON, SHORES and ADAMS, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

I cannot agree with the majority’s handling of the issue in this case concerning “the fence line v. a quarter section line— the adverse possessor v. the Record title holder.” The parties in this case are coterminous landowners. This case involves the erection of a fence on a line different from the section line. The variance, however, between this “fence” case and other “fence” cases is that this fence was not erected by the claimant but by defendant’s predecessors and that both parties put the disputed section “to such use or exercise[d] such dominion over it as in its present state it is reasonably adapted . . . . ” James v. Mizell, 289 Ala. 84, 88, 265 So.2d 866 (1972).

“In a boundary dispute, the coterminous landowners may alter the boundary line between their tracts of land by agreement plus possession for ten years, or by adverse possession for ten years.” Kerlin v. Tensaw Land & Timber Co., Inc., 390 So.2d 616, 618 (Ala.1980). In the case at hand, there is no evidence of agreement nor, do I believe, sufficient evidence of adverse possession.

The majority relies on Jordan v. Miller, 361 So.2d 1080 (Ala.1978), to counter appellant’s (defendant’s) argument that the evidence presented by the appellees (claimants) was insufficient to prove actual or exclusive possession by the appellees. Jordan dealt with a situation where the owner, not sure of the true boundary line, built his fence back away from the true line. Unlike the case at bar, the landowner in Jordan never used or occupied the strip in question. Jordan v. Miller, 361 So.2d at 1081. Appellant and appellee, contra to Jordan, each admit that the other made use of the land and that, due to the section being a densely wooded area, neither party occupied the strip of land in question.

In Knowles v. Golden Stream Fishing Club, Inc., 331 So.2d 253, 254 (Ala.1976), this Court stated:

Under" the law of Alabama, a person claiming title by adverse possession against the holder of the legal title, has the burden of showing actual, clear, definite, positive, notorious, open, continuous, adverse and exclusive possession of a definite tract under a claim of right for the time prescribed by law, and such possession is required to be shown by clear and convincing evidence. Prestwood v. Hunt, 285 Ala. 525, 234 So.2d 545 (1970).

In addition, as stated in Pendley v. Pendley, 338 So.2d 405, 407 (Ala.1976):

The Alabama rule is consistent with the general rule as stated in Tiffany, The Law of Real Property, Third Edition Abridged, § 550, pp. 480-481:
To enable one to acquire title by adverse possession his possession must be hostile to the true owner and must be under a claim of right and must exclude any recognition of the rights of the true owner. Intention is of prime importance. Intention to hold adversely must exist for the entire statutory period.

This Court has consistently required evidence of adverse possession. The burden of presenting this evidence is on the party claiming possession in opposition to legal title.

In an adverse possession case, the burden of proof rests upon the party who asserts it, Ratcliff v. Giorlando, 343 So.2d 506, Ala.Sup. (1977), to prove that the possession is actual, hostile, open, notorious, exclusive and continuous for the statutory period. Smith v. Claybrook, 349 So.2d 1087, Ala.Sup. (1977). This is a heavy burden requiring substantial evidence. Every presumption is in favor of the holder of the legal title. Prestwood v. Hunt, 285 Ala. 525, 234 So.2d 545 (1970); there is no presumption against the holder of the legal title. Jones v. Mitchell, 258 Ala. 651, 64 So.2d 816 (1953).

Casey v. McIntosh, 361 So.2d 1040, 1042 (Ala.1978) (emphasis added).

The appellees cannot rely upon the existence of the fence in aid of this proof of actual possession of the disputed strip east of the fence. The evidence shows that the fence was not built by appellees or their predecessors in title nor has it been maintained by them.

The evidence presented by appellees to prove their acts of possession on the disputed strip are, I believe, insufficient. Appel-lees and appellants both state that the strip for the most part is wooded, unimproved property. Appellees state that they or their predecessors occasionally cut trees; walked on the strip; enjoyed the beauties of nature on the strip; fed squirrels and birds on the strip; cleared areas of underbrush without destroying the nature setting; and occasionally hunted and picnicked on the strip. In addition, there was also testimony that members of the general public occasionally came onto the land in question and used the land in many of the same ways as appellees. Appellant, on the other hand, showed that his employees maintained the fence and that his children hunted and walked on the disputed strip. Therefore, the only conclusive evidence presented, in this case, is that the fence exists and both parties or their predecessors made use of the strip of land in question. I believe that the majority affirms a decision by the trial court which misapplies the law in light of the facts in this case. Just because a landowner does not erect his fence all the way to the section line does not necessarily mean that he recognizes the fence line as his boundary giving his neighbor the right to simply sit back and wait for ten years to pass so that he can make a claim of adverse possession. To obtain title by adverse possession the elements of adverse possession, including actual and exclusive possession, must be proven by the claimant.

I do not feel claimants in this case have proven actual and exclusive possession. The facts show that both parties made use of the strip and both parties were aware of the other’s use. This is not exclusive possession. “In reviewing a decree, this court has held that where the court below had opportunity to hear the witnesses, the decree is entitled to a presumption in its favor on appeal .... However, if it is ‘clearly contrary to the great weight of the evidence,’ this court will reverse on appeal.” Turnham v. Potter, 289 Ala. 685, 690, 271 So.2d 246 (1972).

I believe the only correct decision in this case, based on the evidence, is to grant appellees the eighteen-foot maximum use of the road and to confirm appellant’s ownership of all the land up to the section line. Accordingly, I would affirm in part and reverse in part.

ALMON, SHORES and ADAMS, JJ., concur.  