Opinion
6 Div. 428.
May 28, 1925. Rehearing Denied June 25, 1925.
Appeal from Circuit Court, Jefferson County; William M. Walker, Judge.
Hayden Hayden and Hugh A. Locke, all of Birmingham, for appellants.
Possession taken and held under a claim of right by one of the owners of adjacent lands and to an erroneous line, agreed on by them under a belief that it is correct, is adverse, and, if continued for the statutory period, ripens into a perfect title. Hoffman v. White, 90 Ala. 354, 7 So. 816; Williams v. Bedsole, 174 Ala. 125, 56 So. 567; Alexander v. Wheeler, 69 Ala. 332; 4 Thompson on Real Prop. 3119. A map cannot be introduced in evidence, without proof of its correctness. Code 1923, § 10352; Hess v. Rudder, 117 Ala. 525, 23 So. 136, 67 Am. St. Rep. 182.
J. S. Kennedy, of Birmingham, for appellees.
The intention with which possession is taken and held by a party must always constitute an essential consideration. Davis v. Caldwell, 107 Ala. 526, 18 So. 103; Brown v. Cockerell, 33 Ala. 38; Humes v. Bernstein, 72 Ala. 556; Alexander v. Wheeler, 69 Ala. 332. The map by the county surveyor was presumptive evidence of the facts therein stated. Code 1923, § 10352. Claim of possession under mistake of fact as to the true line would not be adverse. Gibson v. Gaines. 198 Ala. 584, 73 So. 929; Davis v. Caldwell, 107 Ala. 526, 18 So. 103.
The bill was to settle a disputed boundary line between city lots, and resulted in a decree for complainants.
The law of such case is well established in this jurisdiction. Turner v. De Priest, 205 Ala. 313, 87 So. 370. The rule of adverse possession is that —
"Where adjoining landowners claimed and held the land to a line which they believed to be the true line, not intending to hold beyond the true line such claim and possession of the one is not adverse to the rights of the other if the line was not in fact the true line; however if they intended to hold to that line regardless of whether or not it was the true line such holding was adverse." Gibson v. Gaines, 198 Ala. 583, 73 So. 929; Smith v. Bachus, 195 Ala. 8, 70 So. 261; Hess v. Rudder, 117 Ala. 525, 23 So. 136, 67 Am. St. Rep. 182.
It follows that, where adjacent owners agree upon or fix their boundary lines, or "where at the request of adjacent landowners, the county surveyor surveyed and marked on the ground a boundary line between said landowners which was treated by the owner as the true line for ten years or more, the parties acquired title by adverse possession to the line as established, and an owner could not thereafter recover on establishing a different line by a new survey." Williams v. Bedsole, 174 Ala. 125, 56 So. 567; Gunn v. Parsons, ante, p. 217, 104 So. 390.
The questions of fact were not heard orally by the trial judge. Hodge v. Joy, 207 Ala. 198, 92 So. 171; Andrews v. Grey, 199 Ala. 152, 74 So. 62.
When due consideration is given the map offered by complainants and the evidence of respondents of adverse possession of the lot within the enclosure, and upon which a part of respondents' improvements are located, the decree is held to be erroneous. Such is the result, even though the lines as staked out and agreed upon between Hampton and the selling agent for the Jefferson Savings Bank or the owners of lots 99 and 101 are erroneous. The sale and possession of said contiguous lots were with reference to a map or survey, and its markings, by the savings bank. The testimony of Lee and the map in evidence are not shown to be with reference to the government survey or said savings bank map, which map was used in ascertaining the lines by which possession was given and improvements made.
Remove not the ancient landmarks is of biblical injunction. The lot, as fenced and improved by Hampton, was long acquiesced in by contiguous owners as being upon its true lines — for a period of more than 10 years. If said lines be changed as decreed, it would necessitate other changes in lines and affect other lots lying to the east of the Hampton lot (sold with reference to the old map or survey, taken possession of and improved), and bring about a resulting shortage inflicted upon other purchasers who have likewise acquiesced therein. Calhoun should have ascertained the fact now insisted upon by him before his purchase or before expiration of the bar of the statute or interposition of the rule of laches, the period of which is a little less than that of prescription.
The decree of the circuit court in equity is reversed, and the cause is remanded for decree establishing the line pursuant to respondents' claim and possession.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.