Van Valkenburg v. State

Appellant was found guilty by the lower court without a jury of the offense of trespass after warning denounced by Sec. 426, Title 14, Code of Alabama 1940. The court imposed on appellant a fine of $25 and costs.

The essential facts are that Mrs. Alice Geron, who for convenience will hereinafter be referred to as the prosecutrix, purchased the premises known as the Brickell home in April, 1938. Thereafter in February, 1945, Mr. Wilfred Van Valkenburg, hereinafter referred to as the defendant, purchased a lot adjoining prosecutrix's premises. Both parties claim possession of a strip roughly twenty-seven feet in width as a result of an overlap in the descriptions in their respective deeds.

There is much testimony relative to the chains of title of the respective parties, and it might be noted that both lots were originally a part of the Brickell premises. However, Section 426, Title 14, Code of Alabama 1940, is designed to protect possessory interests. Title to the trespassed premises is not involved. Central Iron Coal Co. v. Wright,20 Ala. App. 82, 101 So. 815; Havard v. State, 23 Ala. App. 228,124 So. 912, certiorari denied 220 Ala. 359,124 So. 915. It is no defense in a prosecution of this nature, where the prosecutor is in actual possession of the lands trespassed upon, that the defendant claims, or has, a superior title. Burks v. State, 117 Ala. 148, 23 So. 530; Sherman v. State, 105 Ala. 115, 17 So. 103.

The tendency of the evidence for the prosecution shows that after purchasing the Brickell home in 1938 the prosecutrix went into possession of the premises. At that time a driveway and small brick outhouse were on, or partially on, the land constituting the disputed twenty-seven foot strip. She tore down the small brick house, destroyed the driveway, and incorporated this portion of the premises into a part of her front yard. Thereafter she took steps to landscape or beautify the strip, tended the grass thereon, and planted shrubs and flowers. Her possession of the disputed premises was as full as possession ordinarily is of the yards surrounding a residence. Photographs of the premises taken and received in evidence show this disputed strip to be a continuous part of the yard of prosecutrix's home, with no demarcation whatsoever evident to identify the disputed area.

As to this phase of the evidence pertaining to possession of the disputed strip the tendency of the evidence for the defendant shows that after purchasing lot adjoining the prosecutrix the defendant went thereon several times in surveying and running the lines of the property he claimed. In addition he picked some flowers on the disputed strip, and "cleaned up brush and limbs on the property."

The prosecutrix at all times challenged defendant's right to be on the disputed strip.

By letter dated 5 March 1945 the defendant requested that prosecutrix remove all fence or fences from his property, describing the same in detail. Prosecutrix replied by letter dated 10 March 1945, and received by defendant on 15 March 1945, stating she did not consider the fence to be located on his property and would not move it. The letter ended with the following sentence "Ask that you please not trespass."

Thereafter on 18 March 1945 the defendant was seen on the disputed strip. Mr. Geron, husband of the prosecutrix, testified he thereupon, and as agent for his wife, told defendant he would have to get off my property and stay off. The prosecutrix testified she was in hearing distance of this conversation and that Mr. Geron on this occasion had told defendant "to get off the property and stay off." The defendant did leave, but returned in about an hour with an axe and proceeded to tear down a fence on the disputed strip. The defendant was also on the disputed property the next day running lines, placing stakes, etc.

After careful examination of the entire record we conclude that the material points raised thereby are:

1. Was the prosecutrix possessed of the disputed premises?

2. Was she dispossessed by the acts of the defendant so that notice by her to defendant not to trespass would be inefficacious?

3. Were the notices not to trespass given to defendant sufficient?

The lower court determined these questions of fact favorably to the prosecution. This court will not disturb the findings of a lower court on questions of fact unless it clearly appears that such findings are contrary to the great weight of the evidence. Gunnells v. State, 21 Ala. App. 648,111 So. 320; Keith v. State, 30 Ala. App. 50, 200 So. 573, and cases therein cited. However, without resorting to this presumption of the correctness of the findings of fact by a lower court, it is our opinion that the findings by the lower court were in each instance manifestly correct.

The acts of dominion over the disputed tract exercised by the prosecutrix over a long number of years we think clearly showed her intent to possess the strip of land now in dispute, and to exclude others therefrom. See Holmes, The Common Law, p. 220; Root v. State, Ala.App.,25 So.2d 180,¹ certiorari denied 247 Ala. 514, 25 So.2d 182. Likewise we do not think that the casual entrances by the defendant on the disputed strip were of sufficient continuity and exclusiveness to be deemed to have dispossessed prosecutrix.

It is our opinion that the defendant was sufficiently notified to stay off the disputed land possessed by the prosecutrix, both orally and in writing. The prosecutrix testified that her husband, as her agent and in her hearing, told defendant to "get off the lot and stay off," and in addition she concluded her letter of 10 March 1945 "Please do not trespass."

A warning not to "trespass" does not necessarily carry with it a warning not to go upon land, and if after a warning not to "trespass" one goes on the land with legal cause or good excuse he commits no offense, Woodruff v. State, 170 Ala. 2,54 So. 240; Central Iron Coal Co. v. Wright, supra, and the warning not to "trespass" is of no avail. However, since the purpose of Sec. 426, Title 14, is for the protection of the possession of real estate against intruders and trespassers, the claim of a superior title to the intended premises should not be considered as a legal cause or good excuse for intruding on possessed lands, and a person entering such lands after a warning by the possessor not to enter, even under a claim of superior title, is a trespasser against the possessory interest of the one then in possession. The defendant in this case was therefore within the terms even of the notice in the letter. In view of the existing dispute between the prosecutrix and defendant over the possession of the disputed strip, and their many wranglings concerning same, to say that the defendant was not warned because he did not know the premises he was not to trespass upon would attribute to the defendant a naivete repugnant to common sense and every day reason.

Section 86 of Title 7, Code of 1940, provides that:

"Where two persons claim to have actual possession of the same land, he is deemed in possession who has the legal title, and the other is a trespasser."

It is our opinion that the dual or scrambled possession necessary to bring into operation the above section is so far lacking under the facts of this case as to make unnecessary any consideration of its application.

Affirmed.

¹ Ante, p. 253.