Opinion
7 Div. 8.
November 9, 1950.
Appeal from the Circuit Court, St. Clair County, J. H. Disque, Jr., J.
Embry Embry, of Pell City and T. Eric Embry, of Birmingham, for appellant.
Where coterminous owners or their predecessors in title agree upon a line as the dividing line and occupy up to it continuously for a period of twenty years, such becomes the boundary line and the existence of all necessary elements of adverse possession and title are presumed. Stearnes v. Woodall, 218 Ala. 128, 117 So. 643; Kidd v. Borum, 181 Ala. 144, 61 So. 100; Duke v. Wimberly, 245 Ala. 639, 18 So.2d 554. The elements of adverse possession enumerated in the statute, called the ten-year rule, have no application in suits involving a question of boundaries between coterminous owners. Code 1940, Tit. 7, § 828; Branyon v. Kirk, 238 Ala. 321, 191 So. 345; Hancock v. Warren, 235 Ala. 180, 177 So. 907; Smith v. Bachus, 201 Ala. 534, 78 So. 888; Hopkins v. Duggar, 204 Ala. 626, 87 So. 103; Mink v. Whitefield, 218 Ala. 334, 118 So. 559. If one occupies land up to a certain fence because he believes that to be the line of his land, but not having any intention of claiming up to the fence if it should be beyond the line, the intent to claim title does not exist coincident with the possession and the possession up to the fence is not, therefore, adverse. McLester Bldg. Co. v. Upchurch, 180 Ala. 23, 60 So. 173; Guy v. Lancaster, 250 Ala. 287, 34 So.2d 499. No claim of title can be hostile where there is no knowledge of such claim imputed to the adverse land owner. Author, supra; Hess v. Rudder, 117 Ala. 525, 23 So. 136. There is no favorable presumption attending the trial court's construction of the facts, nor where his conclusions rest on facts undisputedly established, or where the trial court took an erroneous view of law as applied to the facts. Lassiter Co. v. Nixon, 218 Ala. 484, 119 So. 17, 19; Henderson v. Henderson, 228 Ala. 438, 153 So. 646; Murphree v. Hanson, 197 Ala. 246, 72 So. 437.
W. T. Starnes, of Pell City, for appellee.
Since the fence was erected by respondent in 1936 he had been in actual, exclusive and adverse possession of the land. The decree for respondent, on the evidence adduced was proper. Redden v. Otwell 252 Ala. 653, 42 So.2d 454.
Complainant Isaacks has appealed from a final decree determining a disputed boundary line between coterminous tracts of land, in which decree the court established the line as contended for by the defendant, Clayton. § 2, Title 47, Code 1940; § 129, Title 13, Code 1940.
It is not necessary to describe the disputed area of land other than to observe that the complainant's land was south and the respondent's land north of the disputed line. The area in dispute was about thirty or thirty-five feet in width and extended across a part of the SE 1/4 of Section 14, Township 16 South, Range 2 East. The evidence was heard ore tenus in open court.
It was the contention of the complainant in the trial below and renewed here that the division line between the lands of the parties was an old established line which had been recognized between the coterminous landowners for more than twenty years and that the respondent, some few years previous to the institution of the suit, caused the land to be re-surveyed, established a new line, and fenced up the disputed area, which complainant owned. Had this been all the evidence, the complainant, of course, would have been entitled to a favorable decree establishing the line as contended for by him. This under the well-known principle that if two owners of adjacent lands agree on a division line between tracts of land, and each holds possession for ten years, claiming to said line, the title becomes perfect without regard to the true location of the boundary line between them. Gunn v. Parsons, 213 Ala. 217, 104 So. 390(2); Branyon v. Kirk, 238 Ala. 321, 191 So. 345; Duke v. Wimberly, 245 Ala. 639, 18 So.2d 554.
But adverse possession may be abandoned and if one of the adjoining owners repudiates the dividing line and establishes a different line and erects his own fence and holds possession adversely up to said fence line for a period of ten years, the former title of the adjacent landowner is thereby divested. Stated another way, when an adjacent landowner proceeds to enclose his property and erects a fence intended as a line fence and holds actual and exclusive possession to it as such, his possession is adverse and if continued for ten years ripens into title. Denton v. Corr, 253 Ala. 497, 45 So.2d 288; Brantley v. Helton, 224 Ala. 93, 139 So. 283; Lyons v. Taylor, 222 Ala. 269, 132 So. 171.
Decision here is governed by the last stated principle. The tendency of the evidence for the respondent established rather preponderantly that more than ten years before the institution of the suit he had the division line between the respective tracts of land surveyed to establish the true government line; that it was so established and he immediately erected a division fence and has been in the actual, open, notorious, and exclusive possession thereof continuously since that time and cultivating the land up to the fence. This possession for the stated period perfected his title to the land up to the fence and whatever may have been the condition of the title to the property prior to that time, it cannot avail to dispossess him now.
The claimed fact that the complainant had no actual knowledge of the adverse possession of the disputed strip of land by the respondent in no way detracts from the governing principle or prevents the perfection of the respondent's title. When the possession was thus as open, visible and notorious as it was, notice is imputed to the complainant. "* * * such actual possession, being a patent fact, furnishes evidence of its own existence, and is the equivalent of actual notice of the claim under which it is held." Gerald v. Hayes, 205 Ala. 105, 106, 87 So. 351, 352; 2 C.J.S., Adverse Possession, § 45, p. 560, 561.
The evidence, as observed, was heard orally before the court and under the well settled presumption attending decision under such circumstances, the finding on the issue will not be here disturbed. Huckaba v. Hill, 209 Ala. 466, 96 So. 569; Ray v. Richardson, 250 Ala. 705, 36 So.2d 89.
We find no error to reverse.
Affirmed.
FOSTER, LIVINGSTON, and STAKELY, JJ., concur.