Bobby Connell et al. v. Joseph Moody and Laura Moody

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REL: 06/01/2012 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2011-2012 2101149 Bobby C o n n e l l eta l . v. Joseph Moody and Laura Moody Appeal PITTMAN, of a deceased Court Judge. Bobby C o n n e l l child from W a l k e r C i r c u i t (CV-08-900224) and three deceased sibling sibling of h i s siblings, as w e l l a n d two c h i l d r e n ("the Connells"), appeal of as one another from a judgment i n 2101149 favor of dispute Joseph Moody and among c o t e r m i n o u s The Connells own Laura landowners. rural property Parrish Road i n Walker C o u n t y . "parcel 2 0 " on t h e W a l k e r The p a r e n t s Connell, Mae onto the property from B u k a Mae d i e d i n 2006. parcel their the property father, 20) thus from adjoining brother, i s i d e n t i f i e d as Commissioner's map. P.F. two from Connell, i n erecting separating, they the Kirkpatrick property W.A. purchased the i n 1 995, and then died acquired and Mae's Bobby after and J a c k their and interests Connell ( t h e two parents they had Kirkpatrick, a barbed-wire fence testified 2 (parcel Carlos that, the son of along a tree (parcel 21.001, and Bobby after had assisted said, the Connell property property Bula will. their Kirkpatrick, to the west). Connell, P.F. P.F. of Bula weeks of the and years Connell Mae a widow. i n 1971. the terms sons), Ada K i r k p a t r i c k , line, on O l d O a k m a n - i n 1 9 6 1 , as t e n a n t s The C o n n e l l s to Carlos Connell purchased f o r 10 Kirkpatrick 20 u n d e r According elder County Revenue boundary-line affirm. The p r o p e r t y the property property in We fronting l a n d o w n e r , Ada K i r k p a t r i c k , rented in a o f t h e C o n n e l l s i b l i n g s , P . F . C o n n e l l and B u l a moved adjoining Moody and the fence the their was 2101149 erected in 1971, boundary l i n e boundary Connell until the the and on had the and the C o n n e l l s ' fence d i d not in the that kept mules father side and property, correspond of the had The planted fence to every a year horses in that area during and K i r k p a t r i c k d i e d i n 1997, 21.001 changed Moodys purchased Mortgage sale. hands Moodys there several parcel Association The 21.001, ownership of parcel 21.001 testified was no east to the survey of the property. presented Revenue and them w i t h Mae") that the fence map a foreclosure purchased not the i t a Walker from a realtor County Commissioner. A f t e r the former occupant's s t a t u t o r y r i g h t of expired, the property. parcel commission testified, from the National separating did they when Federal they they Instead, 2006, following when that a parcel before from barbed-wire 20 the times ("Fannie parcel had the K i r k p a t r i c k deed. their Connell i t as offseason. Ada had recognized the designated testified garden 1994 fact that line sons vegetable K i r k p a t r i c k had between her p r o p e r t y notwithstanding the Ada First, Moodys began making improvements t h e y made r e p a i r s t o t h e 3 redemption residence to the located 2101149 on the property. cutting back during the pieces of line. In because their Next, the barbed she wire, February property line The as out property and property. The correct that his 1971, in the informed after and pastured than 20 years. marking Moodys' Carlos animals The was on on t h e i r Moodys stakes had about eastern Moodys was on the the to mutually their Connells' shed, as s u r v e y e d explained the Connells s i d e of the later been 4 the was the not established fence had planted fence f o r more discovered p u l l e d up and Moodys e r e c t e d the barbed-wire said, of a dilapidated old shed had side The shed Connells fence performed deed. the Carlos had along broken no eastern of Kirkpatrick when t h e y which, stakes seen and that, and survey the them t h a t t h e l i n e line. Ada a land testified had l i n e ran through the crops surveyor's placed Moodys a s k e d the boundary l i n e in on barn the rusty she a the f a t h e r and said, had of property several two-thirds one-third Carlos Connell the that Moody Moodys build surveyor set indicating she the n o t i c e d t h a t the surveyor's shed, found but, to c l e a n i n g up Laura had 2008, wanted property. began overgrowth. cleanup, they they and that the that W.A. 2101149 Connell the had west strung a barbed-wire of the surveyor's In A u g u s t 2008, claim of trespass fence staked t h e Moodys s u e d t h e C o n n e l l s , and s e e k i n g Moodys the t r i a l i n which a tree line alleging a j u d i c i a l determination court entered i t determined to line. boundary l i n e between the p r o p e r t i e s . proceeding, along a of the F o l l o w i n g an o r e tenus a judgment i n favor of the that "[t]he boundary line between the parties' p r o p e r t y a s d e s c r i b e d on t h e [ M o o d y s ' ] d e e d i s t h e t r u e and a c c u r a t e b o u n d a r y l i n e [ , ] "[t]he [ C o n n e l l s ] without permission from [ M o o d y s ] r e m o v e d t h e s u r v e y m a r k e r s p l a c e d on boundary l i n e by t h e [ M o o d y s ' ] s u r v e y o r [ , a n d ] the the " [ t ] h e [ C o n n e l l s ] t r e s p a s s e d on t h e [ M o o d y s ' ] property by p l a c i n g a barb wire fence on the property." From that judgment, the Supreme C o u r t o f Alabama. court pursuant Connells The appeal to § 12-2-7(6), Standard timely was A l a . Code of appealed to the t r a n s f e r r e d to this 1975. Review "Where a t r i a l c o u r t h e a r s o r e t e n u s t e s t i m o n y , as in this case, i t s f i n d i n g s b a s e d upon that testimony a r e presumed c o r r e c t , and i t s judgment b a s e d on t h o s e f i n d i n g s w i l l be r e v e r s e d o n l y i f , a f t e r a c o n s i d e r a t i o n o f a l l t h e e v i d e n c e and a f t e r m a k i n g a l l i n f e r e n c e s t h a t c a n l o g i c a l l y be d r a w n from the evidence, the judgment i s f o u n d t o be p l a i n l y and p a l p a b l y e r r o n e o u s . The t r i a l court's 5 2101149 judgment w i l l be a f f i r m e d i f t h e r e i s credible evidence to support the judgment. Furthermore, where the t r i a l court does n o t make specific f i n d i n g s o f f a c t c o n c e r n i n g an i s s u e , t h i s Court w i l l a s s u m e t h a t t h e t r i a l c o u r t made t h o s e f i n d i n g s necessary to support i t s judgment unless such findings would be clearly erroneous. The presumption of correctness i sp a r t i c u l a r l y strong i n boundary l i n e d i s p u t e s and adverse p o s s e s s i o n cases, because the evidence i n such cases i s d i f f i c u l t f o r an a p p e l l a t e c o u r t t o r e v i e w . " Bearden v. (citations Ellison, 560 So. 2d 1042, 1043-44 ( A l a . 1990) omitted). Discussion Citing 616, 618 acquired Kerlin v . Tensaw (Ala. 1980), title Land & Timber the Connells to the disputed argue property that location of the boundary agreement, they possession of the disputed In the and t h e i r alternative, they line parents argue a g r e e m e n t i s deemed t o be i n v a l i d , the disputed court property 1971 a g r e e m e n t than even 6 10 years. i f t h e 1971 they have a c q u i r e d t i t l e t o findings of fact to alter that i n the exclusive f o r more that, to alter following by adverse p o s s e s s i o n . made no s p e c i f i c alleged had been parents o f a 1971 intitle and t h a t , property their by v i r t u e agreement between t h e p a r t i e s ' p r e d e c e s s o r s the C o . , 390 S o . 2 d The regarding the boundary trial either the line or the 2101149 Connells' adverse-possession claim. determination, however, one i n the Moodys' described rejection court's title of both implicit had not between t h e i r parents had thereafter plainly arguments the true deed by trial boundary line constituted the court's was t h e an implicit Connells. The trial f i n d i n g s -- t h a t t h e p a r t i e s ' p r e d e c e s s o r s i n agreed parcels not -- that The to the existing i n 1971 and t h a t adversely a r e due alter possessed t o be boundary the Connells and the disputed affirmed because line their property they are not erroneous. Alteration of the Boundary Line by Agreement " C o t e r m i n o u s l a n d o w n e r s may l o c a t e a b o u n d a r y b y agreement, provided one o f them holds to the b o u n d a r y s o a g r e e d u p o n f o r a p e r i o d o f 10 y e a r s after the agreement i s reached. Similarly, one c o t e r m i n o u s o w n e r may e n g a g e i n c o n d u c t w h i c h may f o r m t h e b a s i s o f an e s t o p p e l a g a i n s t h i m o r h e r a n d h a s t h e same p r a c t i c a l e f f e c t a s a n a g r e e m e n t . For example, i f a p a r t y represents the l o c a t i o n of a b o u n d a r y t o h i s n e i g h b o r who, i n r e l i a n c e on t h e r e p r e s e n t a t i o n , m a k e s v a l u a b l e i m p r o v e m e n t s on t h e property, o r a c t s d e t r i m e n t a l l y , t h e owner m a k i n g t h e r e p r e s e n t a t i o n w i l l n o t be h e a r d l a t e r t o c l a i m that h i s statements concerning t h e boundary were untrue. I n e s s e n c e , t h e r e p r e s e n t a t i o n and r e l i a n c e upon i t f o r m s an e s t o p p e l w h i c h o p e r a t e s t o f i x t h e boundary." 1 Jesse P. E v a n s I I I , Alabama Property 7 Rights and Remedies 2101149 § 12.4[a] (3d e d . 2004) Woodrow R e y n o l d s 1992); Wallace Kerlin v. v. 27 Alabama So. not parties Alan may Uncertain in or The their Moodys' With court or predecessors 1072, 1076 So. So. 898, 900 Parol agreement in title Although i t , there to 72 allegedly alter alter of that evidence to Smith 2008). Agreement, in title 618; Jacks Sufficiency no at v. is a u n c e r t a i n or i n d i s p u t e Agreement, Before 1986); i t . See Showing, in Boundary was A.L.R.4th 132 indicating agreed that with the boundary line the properties, the boundary was in dispute. evidently of an (Ala. (1929); emphasized be 1031 (Ala. 2d ( A l a . C i v . App. Annot., respective respect predecessors the west 2d 1 0 2 9 , 396 Connells presented their uncertain by Dispute predecessors between reach Stephens, Boundary before So. Co., always a l s o Moss v. 2d So. 124 508-09 Establishing (1989). 341, See 592 t h a t the boundary l i n e the generally have 495 & Timber 2d 504, cases T i m b e r Co., Putman, A l a . 338, requirement before v. Tensaw Land C o o k , 220 Taylor, & Son (footnotes omitted). to alleged concluded in title the the had not 1971 agreement, either that the the parties' erected a barbed-wire deeded boundary 8 line or, i f they trial had fence to erected 2101149 such a fence, that the fence of that the fact parents to use represented merely a r e c o g n i t i o n Kirkpatrick had permitted the Connells' portion her property, but not a of that K i r k p a t r i c k had agreed t o a l t e r the boundary l i n e d e s c r i b e d i n her deed. So. 2d a t 1031 an 'outstanding case S e e M o s s v . Woodrow R e y n o l d s & S o n T i m b e r C o . , indicates constructed permission (stating that, "[a]lthough symbol of p o s s e s s i o n , ' that a fence of [the defendant] on t h e d i s p u t e d [the p l a i n t i f f ] " 428 S o . 2 d 6 2 2 , 624 and as testify a witness. that it occupied 20 a c r e s with the C o n n i e G a r n e r , who refused t h e p a r t i e s made regarding Garner's when the Connells' b u t t h a t , a t some p o i n t b e f o r e 21.001, express he was t a k i n g made h i m d o u b t h i s c o m p e t e n c e F o l l o w i n g a bench conference, back and medication proposed t h a t G a r n e r " h a d no k n o w l e d g e o f t h e f e n c e Kirkpatrick parcel land C o c k r e l l v. K e l l e y , was e s t a b l i s h e d a n d p u t up b y t h e C o n n e l l s ' property" the the anti-depressant the f o l l o w i n g j o i n t o f f e r of proof testimony: ... t h e r e c o r d i n t h i s (quoting as a w i t n e s s on t h e g r o u n d "nerve p i l l s " i s normally (Ala. 1983))). The M o o d y s c a l l e d to a fence 592 Garner parents line f a t h e r and Jack acquired the t h e Moodys purchased h a d o f f e r e d t o p u r c h a s e p a r c e l 20 9 as from 2101149 the Connells and the property line between shed." W.A. [Connells'] that offered to purchase t h a t the Connells' the trial offer court was permitted to the land s h e d was to Ezell 1985) parcels denied that the v. court are b i n d i n g upon the p a r t i e s ) , even i f J a c k K i r k p a t r i c k and in 1971, that that offer of proof fence fence Connells' fence) side Alteration The trial alternative evidence parents of the of the court (and constructed by not the informed of p r o o f So. (which was 4 96, 4 98 in open had represent If i t agreements Connell the shed, by Connells 10 as 2d that, erected the true and a s t r u c t u r e on the upon p a r c e l Adverse to with 21.001. Possession r e j e c t the indicates the the understood adverse possession fence Garner p r o p e r t i e s b e c a u s e , as authorized the had fact), 4 97 encroached argument r e g a r d i n g presented Garner i t c o u l d have found did Boundary Line was of oral i n d i c a t e d , W.A. acknowledged that the the the C o n n e l l s ' parents boundary l i n e between the p a r t i e s ' joint offer Childs, (stating through that had that on p a r c e l 2 1 . 0 0 1 . stipulation Civ. fence he Garner "goes both joint (Ala. a informed encroaching joint see had two and accepted a do, App. Connell Connell the had akin W.A. Connells' because that permission the their of Ada 2101149 Kirkpatrick, that their t h e Moodys' p r e d e c e s s o r in title, and t h e r e f o r e p o s s e s s i o n was n o t h o s t i l e . "Generally, possession of land entered into with p e r m i s s i o n o f t h e owner w i l l n o t r i p e n i n t o title. ... I n o r d e r t o c h a n g e p o s s e s s i o n f r o m p e r m i s s i v e t o adverse, the possessor must make a clear and positive disclaimer or r e p u d i a t i o n of the true owner's t i t l e . The p o s s e s s o r m u s t g i v e t h e t r u e o w n e r a c t u a l n o t i c e o f s u c h d i s a v o w a l , o r he m u s t m a n i f e s t a c t s o r make a d e c l a r a t i o n o f a d v e r s e n e s s so n o t o r i o u s t h a t a c t u a l n o t i c e w i l l be p r e s u m e d . "The t r i a l c o u r t f o u n d t h a t [ t h e d e f e n d a n t ' s ] p o s s e s s i o n had n o t been h o s t i l e b u t had been w i t h t h e p e r m i s s i o n o f t h e l a n d o w n e r . T h e r e was e v i d e n c e to s u p p o r t t h a t f i n d i n g . T h e r e f o r e , [ t h e d e f e n d a n t ] f a i l e d to e s t a b l i s h the elements necessary t o prove t h a t h i s p o s s e s s i o n o f t h e d i s p u t e d p r o p e r t y was adverse." Moss v . Woodrow R e y n o l d s The and trial & S o n T i m b e r C o . , 592 S o . 2 d a t 1 0 3 1 . c o u r t ' s j u d g m e n t was s u p p o r t e d i s due t o be u p h e l d . tenus proceedings, coterminous correct i f i t i s supported Dunn, Valentine The a trial e n t e r s a judgment between v. "[W]hen landowners, that court, after ore a boundary line judgment by c r e d i b l e 871 S o . 2 d 8 0 7 , 810 v. I r e l a n d , setting by t h e e v i d e n c e i s presumed evidence." Henderson ( A l a . C i v . App. 2001) 580 S o . 2 d 5 8 1 (citing (Ala. 1991)). judgment o f t h e Walker C i r c u i t C o u r t i s a f f i r m e d . 11 2101149 AFFIRMED. Thompson, P . J . , a n d B r y a n a n d Thomas, J J . , c o n c u r . Moore, J . , c o n c u r s i n t h e r e s u l t , w i t h o u t 12 writing.

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