Brown v. Cockerell , 33 Ala. 38 ( 1858 )

WALKER, J.

—Emerson Cockerell and George A. Brown were, in 1841, coterminous proprietors, to the extent of the eastern half of the dividing line between sections 19 and 30. Emerson Cockerell and one Richardson were coterminous proprietors to the extent of the western half of that line. Emerson Cockerell and George A. Brown agreed upon a dividing line as far as they were coterminous proprietors, that is, to the extent of one half the section line, measured from the eastern end of it. The land now in controversy extends westward beyond the point at which the line so agreed upon ended. There was no evidence that the line agreed upon between Emerson Cockerell and George A. Brown extended more than half the length of the dividing line between the two sections. There was, therefore, no evidence upon which a charge in reference to the establishment, by agreement of Emerson Cockerell and George A. Brown, of the northern boundary line of the land in dispute, in its full extent from east to west, could legitimately be predicated. From the agreement between Emerson Cockerell and George A, Brown, no inference of a right to defend the suit as to the entire area in controversy could be drawn, because that agreement only applies to so much of the land as lies east of the middle point on the dividing line between the two sections. For this reason, the first charge asked was partly abstract, and there was no error "in the refusal to give it.

[2.] But, if the evidence had justified the charge, or if the charge had not asserted a defense broader than the evidence, the refusal of it would, have been a palpable error. If two coterminous proprietors agree upon, a dividing line, and follow up that agreement by the joint construction of a dividing fence, and afterwards occupy up to that fence, the possession is certainly adverse; and, if continued for the period prescribed in the statute of limitations, will confer a complete title. Besides the numerous authorities cited by the appellant’s counsel on this point, we refer to Burrell v. Burrell, 11 Mass. R. 294; and Brown v. McKinney, 9 Whar. 567.

The authorities do not all agree as to the effect of a parol agreement for the establishment of a dividing line, followed by possession up to that line, for a period less than is necessary to perfect a bar under the statute of limitations. The defendant has been in .possession for the time mentioned in the statute'.^. That question cannot arise in this case, and we pass it vnthout.a decision of it. See the authorities upon the briefs, and Boyd v. Graves, 4 Wheat. 5l3; and Tolman v. Sparhawk, 5 Met. 475.

[3.] The second charge refused by the court places the defendant’s claim upon the facts, llfcat there had been for more than ten years before the'';cqjmmencement of the suit a dividing fence, erected by him and those from whom he derived title, leaving the disputed area on his side; and there had been during that time possession and the exercise of acts of ownership up to such fence by him, known to the plaintiff or his predecessors. A dividing fence may be extended beyond the true line, placing within the enclosure of one coterminous proprietor a portion of the other’s land, through mere inadvertence, or ignorance, or from convenience, and with no intention to claim it. In such a case, the possession up to the dividing fence would not be adverse. The pioint is so decided in Gilchrist v. McLaughlin, 7 Iredell, 310; and Brown v. Gay, 3 Greenleaf, 126.

It must be conceded that the charge is fully sustained by the decision in French v. Pearce, 8 Conn. 439, and in some other cases. But it is wrong upon principle. If a party occupies land up to a certain fenee, because he believes it to be the line, but having no intention to claim up to the fenee if it should be beyond the line, an indispensable element of adverse possession is wanting. The intent to claim does not exist, and the claim which is set up is upon the condition that the fenee is upon the line. ■Or, if the fence is put over the line from mere convenience, the occupation and exercise of ownership are without claim of title, and the possession could not be adverse. This is the only view of the question which we think can be reconciled with the previous decisions of this court. Herbert v. Hanrick, 16 Ala. 581; Hinton v. Nelms, 13 Ala. 231; Badger v. Lyon, 5 Ala. 567; Benje v. Creagh, 21 Ala. 156; Knight v. Bell, 22 Ala. 198; Harrison v. Pool, 16 Ala. 167 ; Abercrombie v. Baldwin, 15 Ala. 363; Johnson v. Toulmin, 18 Ala. 50; Cotten v. Thompson, 25 Ala. 671; Bryan v. Weems, 29 Ala. Rep. 423. These authorities show, that the inere possession of another’s land is not, prima facie, adverse to the true owner. Possession is prima-facie evidence of title, and a recovery in ejectment may be had upon it. But, when it is shown that the true title is in another, the intendment in favor of the possession ceases. The law, then, will not presume that the possessor does the wrong of disseizing the true owner. It devolves upon Mm the burden of showing the hostility of his possession to the true owner.—Angelí on Lim. §§ 380, 384, 385.

The charge does not present the case of two coterminous proprietors building by consent a fence, as the dividing fence between them, and subsequently occupying up to it. In such a ease, there would be a clear assertion that such was the dividing line, and that each claimed title up to it; and the intention to claim up to it would be manifest. In such a case, the authorities agree that the possession would be adverse.—Burrell v. Burrell, 11 Mass. 294; Smith v. McAlister, 14 Barb. 434. It would, in such case, be evident, that they claimed the fence to be the dividing line. The law would be the same, if one of the coterminous proprietors should build a fence as the dividing fence, and should occupy with a claim, manifested by words or acts, that such was the line up to which his land extended. But neither of those is the case made by the charge.

The third charge asked is obnoxious to the same objections with the second.

[4.] In relation to the 4th charge requested: If the title to the disputed land had vested, by virtue of the statute of limitations or otherwise, in the defendant, the verbal agreement to a survey of the line certainly would not divest the title. The title to real estate, no matter in what way acquired, could not be divested by any such agreement. The agreement was a circumstance to be considered by the jury, in determining the question of adverse possession. Its effect upon the question of adverse possession, and therefore upon the plaintiff’s right of recovery, was for the jury. On that account, the court did not err in refusing this charge.

[5.] The court charged the jury, that a possession, to be adverse, must be “notorious, uninterrupted, and under an adverse claim of title.” The law is in many books laid down in language equivalent to, and in some identical with, this charge.—Herbert v. Hanrick, 16 Ala. 581— 596; Benje v. Creagh, 21 Ala. 151-156; 2 Smith’s Leading Cases, top page 562, Amer. Note to Taylor v. Horde; Angelí on Limitations, 480, § 892. But why is it that notoriety of possession is necessary ? The principle asserted in Benje v. Creagh, “ that the whole doctrine of adverse possession rests upon the presumed acquiescence of the owner,” is undoubtedly correct. Acquiescence cannot be presumed, unless the owner has, or may be presumed to have, notice of the possession. Notoriety and openness of possession are, therefore, important constituents of the adverse possession, as facts upon which the presumption of the owner’s knowledge may be predicated.—See the subject discussed in Smith’s Leading Cases, supra; also, Angelí on Limitations, 491, § 898. This notoriety of possession cannot be important or necessary, if in fact the possession was known to the true owner. It could -not be requisite for the defendant to prove that his possession was notorious, in order to authorize the presumption of the owner’s knowledge, when in fact such knowledge really existed. The evidence in this case conduced to show that the plaintiff knew of the defendant’s possession. It was proper for the court in its charge, in such a case, to permit a verdict for the defendant, although the possession was not notorious, if the jury believed that it was known to the plaintiff. This the charge erroneously omits to do.

The judgment of the court below is reversed, and the cause remanded.