Berry v. GuytonBerry v. Guyton
This аppeal is from a final decree of the circuit court of Etowah County, in equity, establishing a boundary line between parties who are coterminous owners of city lots in Gadsden, Alabama.
Complainants-appellants, John S. and Jewel S. Berry, own lot 119 located at 18 Sandusky Lane. Respondents-appellees, Ruth L. Guyton and her two daughters, Sherry Thrasher Simmons and Kathy Thrasher, own the аdjoining lot 118 to the west, at 6 Sandusky Lane. Also joined in the bill, as respondents, were Richard L. Guyton (Ruth L. Guyton’s present husband) and Cone Mills, Inc., the original owner of both lots and the source through which both partiеs derive title. Respondent Sherry Simmons is over the age of 21 years, and married. Respondent Kathy Thrasher was a minor 14 years of age at the time the bill was filed. Both are daughters of Mrs. Guyton and her fоrmer husband, David Thrasher, deceased.
The bill of complaint alleges that the boundary line between the two lots is indicated by stakes at the northwest and southwest corners of the Berrys’ lot; that the Berrys’ garage extends over the straight line formed between these two stakes a distance of 3.2 to 4.7 feet; and that since 1960,
The trial court entered a final decree adverse to complainants Berry, which provided, in part, as follows :
“THE COURT FURTHER FINDS that the Plantiffs have not been in actual, open, notorious, hostile, exclusive, peaceable and continuous adverse possession of said garage site under color of title for a sufficient period of time so as to constitute title by adverse possession.
“THE COURT FURTHER FINDS that the Plaintiffs have not been in actual, possession of the disputed garage site under a claim of right and color of title, openly and exclusively believing that the Plaintiffs were holding to the true line. * * * ” [Emphasis' supplied.]
The decree found that respondents Richard L. Guyton and Cone Mills, Inc., have no interest in the property in litigation.
Thе trial court also decreed the true boundary line between the lots to be a straight line between the two stakes; denied the relief prayed for by the Berrys; and, ordered them to remove their garage. From this decree the Berrys appeal.
We have concluded that there is error in the trial court’s decree, in that the decree misapplied the law of advеrse possession to the facts of this case. The decree of the trial court must therefore be reversed and the cause remanded.
The evidence, consisting of oral testimony and a Stipulation of Facts, is substantially undisputed. The Berrys have been living in a house on lot 119 since 1928. From 1928 to 1951 they rented the property. Both lots 118 and 119 were then owned by Dwight Mills, Inc., which subsequently conveyеd the lots to Cone Mills, Inc. In 1943, Cone Mills, at the request of the Berrys, built the garage adjacent to the Berrys’ house. In 1951, the Berrys contracted with Cone Mills to purchase the house and lot on an installmеnt basis, title to pass when the last installment was paid. Before the contract to purchase was made, Cone Mills had the lot surveyed. A metal stake or pipe was placed in the ground at each corner of the Berrys’ lot. These stakes are still in place and both parties agree that they represent the northwest and southwest corners of the Berry lot. If a straight line is drawn between these stakes, the Berrys’ garage would extend some 3.2 to 4.7 feet on the Guytons’ lot. On June 6, 1960, the Berrys paid the last installment on their sales contract and received a deed tо lot 119. In 1962, Mrs. Guyton and her two daughters, respondents Sherry and Kathy, received a deed to lot 118 under a similar sales contract with Cone Mills. A dispute arose between the parties as to the boundary line between the respective lots, and on June 1, 1971, the Berrys filed this suit to establish the boundary line.
' The Berrys contend that the trial court erred in applying the law of adverse possession to the facts in this case. The trial court’s decree was based, at least in part, on the court’s finding of fact that the Berrys had not possessed the property under color of title. The Berrys insist this is a case involving a question as to a boundary between coterminous owners and therefore by the express terms of Title 7, § 828, Code of Alabama 1940, they are exempt from the requirement оf showing color of title.
Title 7, § 828, provides as follows:
“Adverse possession, etc. — Adverse possession cannot confer or defeat title to land unless the party setting it up shall show that a deed or other colоr of title purporting to convey title to him has been duly recorded in the office of the judge of probate of the county in which the land lies for ten years before the commencеment of the action; or unless
The Guytons contend that this is not a case involving a question as to a boundary line between coterminous owners in that “ * * * the area claimed by the Appellаnts is not a strip of land between where the Appellants claimed the boundary line is located and where the Appellees claim the boundary line is located.” Rather, the Guytons insist that thе Berrys are claiming, by adverse possession, property which they have known since the 1951 survey to be a part of the Guytons’ lot. Therefore, the Guytons maintain that the exception contained in Title 7, § 828, is not applicable to this case and that the Berrys must show either color qf title or payment of taxes or title derived by descent cast.
We find no merit in the Guytons’ contention. Wе are of the opinion that the fact situation presented by this case falls within the express provisions of Title 7, § 828, excepting from the requirements of that section, cases involving questions аs to boundaries between coterminous owners, and that the Berrys need not show color of title in order to establish their claim by adverse possession.
At the outset, we note that the specific language of the “AGREEMENT TO STIPULATE FACTS,” entered into between the parties is “ * * * that a dispute has arisen between said parties concerning the true boundary line between their respective properties.” This alone is sufficient to refute the Guytons’ contention that this is not a case involving a question as to a boundary line between coterminous owners.
Moreover, this case undеniably involves a question as to the ownership of a strip of land located between coterminous owners. We note that the exceptive language of Title 7, § 828, is not limited to any particular type of boundary dispute but applies to “cases involving a question as to boundaries between co-terminus owners.” We are of the opinion that the instant case cleаrly falls into this category, and that the legislature intended such a case as the one before us to be excepted from the requirements of Title 7, § 828.
Thus, we hold that it was reversible error for the trial court to conclude that, because it found the Berrys had not been in adverse possession under “color of title” for a sufficient period of time, the Berrys had not adversely pоssessed the garage site.
Since this case will presumably be retried, we refrain from commenting upon, or giving our view of the evidence. However, we do call the trial court’s attention tо the rule that in cases involving a question as to boundaries between coterminous landowners, “the claimant need show only dominion over the land claiming it adversely as to the whole world for the required time.” Williams v. Davis,
We observe that respondent Kathy Thrasher was alleged to be fourteen years of age when the bill was filed in June 1971. The provisions of Title 7, §§ 102 and 177, Code of Alabama 1940, require such persons to be defended by a guardian ad litem. Doss v. Terry,
In view of the result we have reached, it is unnecessary that we consider the other assignments of error dealing with the conduсt of the trial. We believe it is unlikely that these circumstances will occur again when another trial is held.
The decree of the trial court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.