Davis v. Caldwell , 107 Ala. 526 ( 1894 )

COLEMAN, J.

Hamlin Caldwell sued in ejectment to recover a small strip of land lying within and along the boundary of fractional section four, and adjacent to the line dividing it from fractional section five. The evidence shows that the land sued for lay within section four. The defendant entered into possession under a purchase and deed of conveyance from Jesse Boyd about five years before the bringing of the suit. Boyd’s deed conveyed only lands in section five and none in section four. Caldwell and Boyd had been coterminous land owners for more than twenty years, the former claiming possession and ownership of the lands in fractional section four, and Boyd in fractional section five. The defendant relied upon the statute of limitations of ten years, as a bar to a recovery, and to sustain the defense offei’ed evidence for the purpose of showing that Boyd, his vendor, had been in the adverse possession of the land in controversy for more than ten years. According to the government survey and the description of the lands in the deed of conveyance to him, the defendant acquired no right or interest in the land. The question of contention is whether by agreement or otherwise the dividing line between sections four and five, fixed by government survey, as between Caldwell and Boyd had been changed, so that the strip would pass by a conveyance of section five. The evidence shows that neither Caldwell nor Boyd had ever had the line between them surveyed, nor had there been any controversy or dispute in regard to the line. The one cleared and cultivated up to a hedge or fence row on his side and the other to the same row on the other side, and that the land in controversy was on that side of the hedge or row cultivated by Boyd. The rule as to when the possession and claim of a coterminous land owner becomes adverse, is clearly and fully stated in the case of Brown v. Cockrell, 33 Ala. 38, as follows: “If a party occupies land, up to a certain fence, because he believes it to be the line, but having no intention to claim up to the fence, 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 fence 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.” The same authority recognizes the doctrine that when parties agree upon a line as a dividing line, and each claim up to it, the claim becomes adverse, or, where one coterminous owner builds a fence as a dividing line, and claims to it as such with knowledge of such claim by the other coterminous owner, the claim becomes hostile. In Humes v. Bernstein, 72 Ala., on page 556, the rule is thus stated : “When the claim is the result of a mistaken belief that the true line embraces the land on which the improvement is made, but with no intention of claiming if not within the area covered by the title, unless possession is held with the intention of claiming the property without regard to the title, or true dividing line, such possession or holding is not adverse,” &c. In Alexander v. Wheeler, 69 Ala. 332, lb., 78 Ala. 167, the rule is declared as follows : “The quo animo or intention with which possession is taken and held by a defendant, must always constitute an essential consideration. Hence, if a partition fence be extended by one of the adjacent owners, so as to enclose within his enclosure a portion of his neighbor’s land through mere inadvertence, or ignorance of the location of the real line, * * * * intending to claim adversely only to the real boundary line, wherever it might be, such possession would not be adverse or hostile to the true owner.” The presumption of law is that possession is subordinate, and not adverse, to the true owner, and notice in some way of adverse possession must be brought home to the true owner. There is no-evidence of an express agreement or understanding between Caldwell and Boyd for the establishment of a dividing line. It is clear that Boyd held the land in controversy for many years beyond that necessary to effect a bar, honestly believing that the fence row was the dividing line and that it belonged to him, hut his testimony leaves no doubt; that he never intended to claim any land in section four, and held possession and claimed it, believing that it was in section five and contained in his deed, and that if he had known it was not in section five, he would not have claimed it. If the evidence of the witness Boyd is true, and there is nothing to contradict it, his possession was not adverse to that of Caldwell. Charge number one given for the nlaintiff was free from error.

We can not say there was error in giving charge number two, when referred to the evidence. Had there been evidence tending to show, that the hedge-row was established as the dividing line by agreement of the parties, or that Boyd claimed up to it, “without regard to the title or true dividing line,” as stated in Humes v. Bernstein, supra, the charge should have been refused. But as the evidence shows, that his claim was based entirely upon the supposition that the land was in section five and in his deed, and not intending to claim it as his own, if in fact it was in section four, we are of opinion the court was justified in giving the charge. The verdict was fully supported by the evidence, and there was no error in overruling the motion for a new trial.

Affirmed.