Opinion
7 Div. 835.
June 11, 1970.
Appeal from the Circuit Court, Cleburne County, in Equity, William C. Bibb, J.
Fred Ray Lybrand, Anniston, for appellant.
Where one claims title to land through an unbroken chain of record title against another who relies upon adverse possession, a very strict burden to establish his title rests upon the one claiming adverse possession. Hagan v. Crowley, 265 Ala. 291, 90 So.2d 760; Spradling v. May, 259 Ala. 10, 65 So.2d 494; Duke v. Harden, 259 Ala. 398, 66 So.2d 899. A permissive possession does not ripen into title unless there has been such a repudiation of the permissive possession as to afford notice of an adverse claim. White v. Williams, 260 Ala. 182, 69 So.2d 847. A cross-bill of complaint is allowable whenever it is necessary to do complete justice between the parties and to adjust all equities between them connected with the subject matter of the original bill. Equity Rule 26, Code of Alabama 1958, Recompiled; Smith v. Maya Corp., 227 Ala. 6, 148 So. 621; Nowell v. Nowell, 255 Ala. 107, 50 So.2d 270; Adams v. Mathieson Ala. Chemical Corp., 262 Ala. 166, 77 So.2d 667.
Knox, Jones, Woolf Merrill, Anniston, for appellees.
Questions of adverse possession are questions of fact properly determined by the trier of fact; and the determination so made, when the evidence is taken orally, is favored with a presumption of correctness and will not be disturbed on appeal unless plainly erroneous or manifestly unjust. Morgan v. Lorde, 282 Ala. 426, 212 So.2d 594; Butts v. Lancaster, 279 Ala. 589, 188 So.2d 548. Decree establishing a boundary line between coterminous lands on evidence submitted ore tenus in open court is presumed to be correct, and in such cases the trial court's conclusions will not be disturbed unless plainly erroneous or manifestly unjust. Jones v. Wise, 282 Ala. 707, 213 So.2d 914; Wiginton v. Duncan, 281 Ala. 395, 203 So.2d 116.
This is an appeal from a final decree rendered in a case involving the boundary line between the property of the appellant and J. T. Williams, who was the complainant below and who died after the appeal in the case had been perfected. The court concluded that the boundary line was as contended by the complainant, Williams.
Only two points are made by appellant on appeal: (1) His insistence that the trial court erred in sustaining the complainant's demurrer to appellant's cross-complaint. We have examined the cross-bill and concur with the trial court — it is demurrable. Furthermore, only a single question was involved below and that was where the boundary line was between the property of complainant and respondent, who were coterminous land owners. This issue was raised by the bill and answer thereto. (2) That the decree rendered below is contrary to the evidence and law in the case.
The evidence clearly establishes that the complainant below, J. T. Williams, has been in possession of the property involved here for many, many years. He and his predecessors in title have for many years claimed to own the land up to a dirt road, which was considered by all as the boundary line between the appellant's property and that of the complainant below. The evidence is overwhelming to the effect that this road has been treated by both sides of this litigation, and their predecessors, as the boundary line between their parcels. In fact the appellant himself indicated that he never knew he owned any land on the east side of the road (complainant's side) until his son noticed in an old deed that the description seemed to include land on the east side of the road.
The evidence is highly supportive of the conclusion reached by the trial court that the complainant below, J. T. Williams, had acquired title to the land up to the dirt road by adverse possession. His decree establishing the boundary line between the two parcels is in line with the evidence. It is presumed to be correct. Jones v. Wise, 282 Ala. 707, 213 So.2d 914; Wiginton v. Duncan, 281 Ala. 395, 203 So.2d 116. A cursory reading of the testimony taken below will refute any charge that the conclusions based upon it are palpably erroneous, a result which is necessary if we are to substitute our conclusions for those of the trial court. Morgan v. Larde, 282 Ala. 426, 212 So.2d 594; Butts v. Lancaster, 279 Ala. 589, 188 So.2d 548.
Affirmed.
LIVINGSTON, C. J., and COLEMAN, BLOODWORTH and McCALL, JJ., concur.