98 So. 3d 549
Ala. Civ. App.2012Background
- Connells own parcel 20 on Old Oakman-Parrish Road in Walker County and dispute a boundary with Moody's parcel 21.001.
- Ada Kirkpatrick owned 21.001 and, after 1971, the Connells’ parents and Ada’s son allegedly erected a barbed-wire fence that connected to the boundary line but did not match the deeded boundary.
- Moody's acquired 21.001 in 2006 from Fannie Mae after foreclosure and did not perform a survey at purchase, relying on a parcel map shown by a realtor.
- In 2008 Moodys had a survey for barn construction; survey line suggested a boundary east of the Connells’ fence and shed, triggering dispute.
- Connells contend there was an alteration of the boundary by agreement in 1971 or, alternatively, that they acquired title by adverse possession.
- Trial court entered judgment in Moodys’ favor locating the true boundary at the Moodys’ deed line; appellate court affirmed the judgment on review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Alteration of boundary by agreement | Connells allege 1971 agreement altered boundary | Moodys contend no valid dispute existed; no evidence boundary was uncertain | No valid alteration proven; boundary fixed by Moodys’ deed line |
| Adverse possession | Connells claim their parents possessed the land adversely after 1971 | Possession was permissive with Ada Kirkpatrick’s permission; not hostile | Possession not adverse; permissions prevented acquisition of title |
| Evidence sufficiency for boundary ruling | Record should support Connells’ theories of boundary alteration or adverse possession | Trial court’s implicit findings supported boundary as Moodys’ deed line | Trial court’s findings supported a Moodys boundary; no clear error in implicit determinations |
Key Cases Cited
- Bearden v. Ellison, 560 So.2d 1042 (Ala.1990) (standard of review for ore tenus boundary cases; strong presumption of correctness)
- Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616 (Ala.1980) (boundary by agreement requires uncertainty or dispute before agreement)
- Moss v. Woodrow Reynolds & Son Timber Co., 592 So.2d 1029 (Ala.1992) (possession with permission does not ripen to title; hostile intent required)
- Moss v. Woodrow Reynolds & Son Timber Co., 592 So.2d 1029 (Ala.1992) (fence with permission may reflect possession; not conclusive of adverse possession)
- Henderson v. Dunn, 871 So.2d 807 (Ala.Civ.App.2001) (boundary determinations after ore tenus proceed; credibility and evidence support affirmance)