Elizabeth Jane Beyke v. Mary Jane Marquart and Shannion R. Brown (Appeal from Lauderdale Circuit Court: CV-22-900249).

Rel: April 11, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2024-2025
_________________________

CL-2024-0513
_________________________

Elizabeth Jane Beyke

v.

Mary Jane Marquart and Shannion R. Brown
_________________________

CL-2024-0527
_________________________

Mary Jane Marquart and Shannion R. Brown

v.

Elizabeth Jane Beyke

Appeals from Lauderdale Circuit Court
(CV-22-900249)
CL-2024-0513 and CL-2024-0527

FRIDY, Judge.

Elizabeth Jane Beyke appeals from a summary judgment the

Lauderdale Circuit Court ("the trial court") entered in favor of Mary Jane

Marquart and Shannion R. Brown in this boundary-line dispute between

adjoining lot owners in a subdivision. Marquart and Brown conditionally

cross-appeal, asking that, if this court reverses the summary judgment,

we also instruct the trial court to reinstate the claims that they asserted

against Beyke but that the trial court dismissed. For the reasons set forth

herein, we reverse the summary judgment and remand the cause to the

trial court for further proceedings.

Background

On November 7, 2022, Marquart and Brown filed a verified

complaint in the trial court asking it to determine the boundary line

between their lot ("the north lot") and Beyke's lot ("the south lot") in the

Oak Hill Subdivision in Florence. 1 They asserted claims of trespass,

1Marquart and Brown also named Beyke's mother and two
brothers, co-owners of the south lot, as defendants. Beyke and her mother
lived in the house they built on the south lot. The brothers have never
lived in the house, they did not join Beyke in challenging the boundary-
line as Marquart and Brown define it, and they are not involved in the
appeal or the cross-appeal. Beyke's mother died in June 2003, and Beyke
has continued to live in the house on the south lot. For purposes of this
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slander of title, and nuisance; they also requested injunctive relief, as

well as the ejectment of Beyke from the strip of land created by the

difference in the boundary lines that each party claimed ("the disputed

strip"). On December 16, 2022, Beyke answered the complaint, pleading

the affirmative defense of adverse possession of the disputed strip. In her

answer, Beyke wrote that her defense of adverse possession was not an

admission that she was not the true owner of the disputed strip. Beyke

also asserted counterclaims mirroring the claims set forth in Marquart

and Brown's complaint, with the exception of the claim for injunctive

relief.

On February 8, 2024, Marquart and Brown filed a motion for a

summary judgment contending that, as a matter of law, Beyke could not

prevail on her affirmative defense of adverse possession. Beyke opposed

the motion. Both parties filed voluminous evidentiary submissions in

support of their respective positions. A map depicting the lots in the

subdivision, as well as two surveys admitted into evidence, indicate that

the south lot, on which Beyke lives, lies directly to the south of the north

opinion, therefore, we will refer to Beyke as though she were the sole
owner of the south lot.
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lot, on which Marquart and Brown live. In other words, the northern edge

of the south lot is the southern edge of the north lot. The lots are

rectangular, with the longer edge lying east to west and running from the

parties' front yards on the eastern sides of the lots to their backyards on

the western sides of the lots.

In her deposition, which was included as part of the evidentiary

submissions of both parties, and in her affidavit submitted with her

opposition to the motion for a summary judgment, Beyke testified that

she purchased the south lot on April 17, 1995, and proceeded to build her

house on the lot. When she purchased the lot, she said, a wooden fence

("the fence") had already been erected on the west or back portion of the

north lot, which at that time was owned by "the Templetons." Beyke

testified that from the time she purchased her lot, she believed that the

fence constituted the boundary line between the south lot and the north

lot. She said that she had placed sod in her yard up to the fence and the

fence line, mowed the yard up to the fence and the length of the yard

along the fence line running the length of the yard, and did other yard

maintenance up to the fence and along the fence line. She said she also

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maintained her side of the fence. She said that she had made repairs to

the fence and had put sealant on it twice.

Beyke submitted the affidavit of Jason Akin, who had owned the

north lot from April 17, 2017, until he sold it to Marquart and Brown on

March 9, 2020.2 Akin corroborated Beyke's testimony indicating that she

did yardwork up to the fence and maintained her side of the fence.

In his deposition, which Beyke included as part of her evidentiary

submission, Brown testified that when he and his wife Marquart

purchased the north lot from Akin, he did not have any discussions with

Akin regarding the location of the boundary line. He also said that he had

no knowledge of when the fence at issue was erected or of what Beyke did

to maintain the yard or the side of the fence facing her yard. In her

deposition, Marquart testified that, originally, she believed that the fence

at issue was the boundary line between the two lots. She also said that,

before Brown and she had a survey done to determine the boundary line,

she did not know where the boundary line should be.

2Marquart and Brown moved to strike portions of Akin's and
Beyke's affidavits, which the trial court granted as part of the summary
judgment. We have not considered the challenged portions of Beyke's and
Akin's affidavits.
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Brown testified that he and Marquart had lived next door to Beyke

for two years when, in July 2022, the original fence had deteriorated to

such an extent that he wanted to replace it. He said that he talked with

Beyke about it and that she did not want him to do any work on the fence.

The day after they spoke about the fence, Brown said, Beyke painted a

red line on the curb and installed security cameras on the side of her

house facing the north lot. He said he wondered why Beyke was "being

so aggressive" and was taking what he said was "a proactive, aggressive

stance" regarding the fence, and that that was the first time that he

considered that there may have been an issue regarding the property

line. When he took a close look at the existing fence, Brown said, he

noticed that after the first forty feet running from the backyard towards

the front yard, that is, from west to east, the fence began to veer north

for the last ten feet.

Brown testified that Marquart and he hired a surveyor, who

determined that the existing fence was about three feet inside the

boundary line, i.e., three feet inside the north lot. According to the survey,

the north lot was approximately 97 feet wide from north to south and 150

feet long from east to west. Based on the survey, Marquart and Brown

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hired a fencing company to take down the fence, which was deteriorating,

and to put up a new fence along what they say is the correct boundary

line as determined by the surveyor. Marquart and Brown both testified

that, as the workers for the fencing company took down the fence, Beyke

followed after them and replaced the fence with a new, temporary fence.

Brown said that Beyke then put up "no trespassing signs" on the

temporary fence, and she prevented the new fence from being erected on

what Marquart and Brown contend is the correct boundary line.

On May 15, 2024, the trial court entered a summary judgment in

favor of Marquart and Brown as to Beyke's claim for adverse possession

"based on, among other things, [Beyke]'s undisputed testimony that

adverse possession is her only basis to claim an interest in the [disputed

strip] ...." It added that, for the reasons set forth in their motion for a

summary judgment, Marquart and Brown were entitled to a summary

judgment and that Beyke had no interest in the disputed strip. The trial

court said that Beyke's other claims were dependent on a finding that she

had prevailed on her adverse possession claim and, therefore, it

dismissed those claims with prejudice.

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CL-2024-0513 and CL-2024-0527

The trial court established the boundary line between the two lots,

determining that the correct boundary line was the line established in

Marquart and Brown's survey, the subdivision plat, and other public

documents. The trial court observed that, although Marquart and Brown

had submitted an affidavit and a verified survey, Beyke had not opposed

that survey with a verified survey of her own or with the affidavit of the

person she had hired to conduct a survey. It also dismissed all other

claims of both parties not specifically addressed. Neither party filed a

postjudgment motion. Beyke filed a timely notice of appeal, and

Marquart and Brown filed a conditional cross-appeal.

Standard of Review

This court conducts a de novo review of a summary judgment.

Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74 (Ala. 2003).

In doing so, we apply the same standard that the trial court applied in

determining whether a summary judgment was due to be granted; that

is, we review the evidence in the light most favorable to the nonmovant,

Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986), and determine whether

the movant has made a prima facie showing that no genuine issue of

material fact exists and is entitled to a judgment as a matter of law, Rule

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CL-2024-0513 and CL-2024-0527

56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski,

899 So. 2d 949, 952-53 (Ala. 2004). Once the movant makes a prima facie

showing that there is no genuine issue of material fact, the burden then

shifts to the nonmovant to produce evidence as to the existence of a

genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin

Cnty., 538 So. 2d 794, 797-98 (Ala. 1989).

A party seeking to acquire title to disputed property through

adverse possession must support its claim with clear and convincing

evidence. Henderson v. Dunn, 871 So. 2d 807, 810 (Ala. Civ. App. 2001).

Therefore, to overcome a motion for a summary judgment challenging

that party's adverse possession claim, the party must present evidence in

support of its claim that, if accepted and believed by the fact finder, would

constitute clear and convincing evidence of adverse possession. Phillips

v. Asplundh Tree Expert Co., 34 So. 3d 1260, 1266 (Ala. Civ. App. 2007);

see also Ex parte McInish, 47 So. 3d 767, 776 (Ala. 2008) (providing that,

in the summary-judgment context, if a claim must be proven by clear and

convincing evidence, " ' "even if a trial judge reaches his or her own

conclusion that the evidence presented does not clearly and convincingly

establish [the subject fact], it is not for him or her to act upon that factual

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determination, but to determine instead whether the actual fact-finder

could reasonably make a different finding based upon the same

evidence." ' " (quoting KGS Steel, Inc. v. McInish, 47 So. 3d 749, 761-62

(Ala. Civ. App. 2006) (Murdock, J., concurring in result), quoting in turn

Gary v. Crouch, 923 So. 2d 1130, 1142 (Ala. Civ. App. 2005) (Murdock, J.,

concurring in result))).

Analysis

Beyke contends that the trial court erred in finding that no genuine

issue of material fact existed. She argues that she presented substantial

evidence indicating that she had exercised exclusive possession over the

disputed strip since 1995, when she purchased the south lot, and that her

possession had been open, notorious, and hostile.

A party claiming ownership of property under a claim of statutory

adverse possession may acquire title to the disputed property if, in

addition to proving the elements necessary for proving adverse

possession by prescription -- actual, exclusive, open, notorious, and

hostile possession under a claim of right for a twenty-year period -- that

party can also show that he or she holds the disputed property under

color of title, has paid taxes for ten years, or derives title by descent cast

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or devise from a possessor. See Kerlin v. Tensaw Land & Timber Co., 390

So. 2d 616, 618 (Ala. 1980); see also § 6-6-200, Ala. Code 1975. A different

rule obtains, however, when the dispute involves the establishment of a

boundary line between lots and not an attempt to acquire all or a

significant portion of a conterminous landowner's property. In that

circumstance, the requirements of statutory adverse possession need not

be met in their entirety, but, instead, we apply what has been called a

"hybrid" form of adverse possession. Buckner v. Hosch, 987 So. 2d 1149,

1152 (Ala. Civ. App. 2007). Under this hybrid form of adverse possession,

"[i]n a boundary dispute, the coterminous landowners may alter the

boundary line between their tracts of land by agreement plus possession

for ten years, or by adverse possession for ten years." Kerlin, 390 So. 2d

at 618.

Neither party argues that statutory adverse possession is

applicable in this case, and we hold that it does not. Because Beyke is

claiming adverse possession of the disputed strip, which is four feet wide

at most and runs the length of the two lots (approximately ninety-seven

feet), we conclude that she is not seeking a significant portion of the north

lot and that, therefore, this case involves a boundary dispute as to which

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the hybrid form of adverse possession applies. See Holifield v. Smith, 17

So. 3d 1173, 1178 (Ala. Civ. App. 2008).

There are two possible avenues for adverse possession between

coterminous landowners: agreement plus possession for ten years, which

Beyke has not asserted, and ordinary prescriptive adverse possession,

which is, actual, exclusive, open, notorious, and hostile possession under

a claim of right for ten years. Collins v. King, [Ms. SC-2023-0492, Mar.

22, 2024] ___ So. 3d ___ (Ala. 2024). In affirming the establishment of a

boundary line between conterminous landowners, this court in Shirey v.

Pittman, 985 So. 2d 484, 488-89 (Ala. Civ. App. 2007), quoted from

Brantley v. Helton, 224 Ala. 93, 139 So. 283 (1932), a longstanding

decision of the Alabama Supreme Court explaining that, whether a fence

establishes a boundary line between conterminous landowners is a

matter of the parties' intent. The Brantley court explained:

"The controlling fact is one of intention. The mere fact
that a mistake was made in locating the boundary, and there
was never an intention to claim the property of another, does
not negative adverse possession. Such a rule would make
adverse possession to depend upon bad faith.

"Was there an intention to fix a dividing line, each to
have the enjoyment of his own property, and was possession
taken and held accordingly, each claiming the property held
as his own, because he considered it his own? If so, the

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possession is adverse. Of course, adverse possession may arise
from boldly and knowingly taking the property of another, or
taking it regardless of whether he believes it is his, thus
ousting the true owner, and holding in hostility to him.

"But in law a hostile possession is not limited to any
such case. It is hostile when held as his own, claimed as his
own, whether by mistake or willfully.

"There are certain cases of entry under the owner, or in
recognition of joint ownership, and the like, when notice of a
hostile possession must be brought home to the owner; but in
boundary line cases, the inclosure of valuable lands ... and
appropriation of same to a beneficial enjoyment, carries notice
of an adverse claim to the adjoining owner, or puts him on
inquiry."

224 Ala. at 96, 139 So. at 285.

In opposition to Marquart and Brown's motion for a summary

judgment, Beyke presented undisputed evidence indicating that the

fence that she claimed was the boundary between the north lot and the

south lot was already in place when she moved into the house on the

south lot in 1995. Marquart and Brown did not move in until more than

twenty years later, in 2020, and they acknowledged that they had no

knowledge regarding the existence of the fence before they moved in or

whether Beyke had exercised exclusive possession over the disputed strip

before they moved in. Beyke also presented acts of ownership, such as

maintaining the disputed strip and her side of the fence that she says

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established the boundary line, which constitutes evidence of "[o]penness,

notoriety, and exclusiveness." Gonzalez v. Naman, 678 So. 2d 1152, 1155

(Ala. Civ. App. 1996) ("Openness, notoriety, and exclusiveness are shown

by the doing of acts that could comport with ownership, i.e., such acts as

would normally be performed by the owner in using his land to the

exclusion of others."). This evidence, if believed by the trier of fact, was

sufficient, in our view, to satisfy Beyke's obligation to support her claim

of adverse possession with clear and convincing evidence.

In their brief on appeal, Marquart and Brown contend that Beyke

cannot prevail on her claim for adverse possession because, they say, she

gave five different locations for the boundary line in her deposition.

Because she is unable to identify the exact location of the boundary line,

they say, she cannot prove by clear and convincing evidence that she has

obtained the disputed strip through adverse possession. Marquart and

Brown's assertion that Beyke's identification of the boundary line as a

"constantly moving target" misrepresents her testimony, however. Beyke

has clearly and consistently insisted that the line established by the fence

that was in place when she moved into the house on her lot constitutes

the boundary line between the north lot and the south lot. The attorney

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for Marquart and Brown acknowledged that during the deposition when,

after Beyke stated unequivocally, that "[t]he original fence line is what I

consider the boundary line," he said: "I know that. I understand that's

your position in the case."

Marquart and Brown contend that, in addition to the fence line,

Beyke claimed that a utility pedestal was situated on the boundary of the

north lot and the south lot. They appear to assert that, in making that

statement, Beyke had located the boundary line in a different place than

the fence line when, in reality, Beyke was identifying where she believed

the fence line ran as it reached the very back of the lots. Her testimony

regarding her belief that the utility pedestal straddled the boundary line

at the back of the lots is not inconsistent with her insistence that the

fence line is the boundary line. The other examples that Marquart and

Brown give for their contention that Beyke kept moving the location of

the boundary line are confusing at best, but they also do not appear to be

inconsistent with Beyke's testimony that she believed that the fence line

constitutes the boundary line between the two lots.

Marquart and Brown also contend that, because a drainage pipe

removing water from the north lot into a drainage culvert behind the

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north lot and the south lot is buried underneath the property that Beyke

is claiming, she cannot prevail on her claim for adverse possession

because, they say, her use of the disputed strip was not exclusive. As

Beyke explained in her deposition, initially, the drainage pipe was buried

entirely on the north lot. However, she said, after the city performed work

behind their lots, there was no longer an outlet for water to go straight

from the drainage pipe into the culvert. Therefore, she said, she allowed

the owners of the north lot to bury the "very last" of the drainage pipe

under the fence, allowing the drainage pipe to enter into her property and

out into the culvert. By doing so, Marquart and Brown argue, Beyke's use

of the disputed strip was not exclusive.

To support their argument, Marquart and Brown rely on LaFlore v.

Huggins, 392 So. 3d 500 (Ala. 2023). In that case, coterminous

landowners both made use of a gully by disposing of yard debris in the

gully, planting in the gully to prevent erosion, and eventually filling in a

portion of the gully. LaFlore, 392 So. 3d at 504-505. Taken as a whole,

the LaFlore court found, there was never a measurable span of time in

which the party seeking to claim adverse possession exercised exclusive

use of the property. Id. at 505. Here, however, once the drainage pipe was

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buried -- with Beyke's permission -- its presence never interfered with

her exclusive use of the disputed strip, which Beyke testified that she

alone maintained.

It is well established that " '[e]xclusiveness of possession is often

evidenced by the erection of physical improvements on the property, such

as fences, houses or other structures.' " Strickland v. Markos, 566 So. 2d

229, 235 (Ala. 1990) (quoting 2 C.J.S. Adverse Possession § 54 (1972))

Burial of the drainage pipe underground did nothing to interfere with

Beyke's exclusive use of the property on her side of the fence, which she

maintains is the boundary. Marquart and Brown cite no authority to

support their contention that an item that in no way interferes with the

way one chooses to use her property precludes a finding of exclusive use

that property. At best, the drainage pipe buried under property Beyke

maintained as her own creates a question of fact as to whether the pipe

deprived Beyke of exclusive use of the disputed strip. Therefore, we

cannot say that the buried drainage pipe is sufficient to prevent a trial

court from being clearly convinced that Beyke's use of the disputed strip

was exclusive despite the presence of the buried pipe.

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Marquart and Brown also contend that the Templetons, who owned

the north lot when Beyke moved into the house on the south lot in 1995,

permitted her to join her own fence to the existing fence to enclose at least

a portion of the disputed strip. Because they gave her permission to

enclose the disputed strip, they argue, Beyke's use of the property was

permissive and not "exclusive." However, there is no evidence that the

Templetons shared the use of the enclosed property. Furthermore,

Marquart and Brown's argument fails to take into consideration that

there is no evidence that Beyke had used the disputed strip with the

permission of the subsequent owners of the north lot. Even if the

Templetons did originally permit Beyke to use the disputed strip by

permission (and we are not convinced that the evidence in the record

requires such a conclusion), in their brief, Marquart and Brown do not

say when the Templetons moved from the house on the north lot, but

deeds in the record indicate that they no longer lived there by 2004,

indicating that Beyke's use of the property had not been permissive for

at least ten years. Once again, there is evidence in the record from which

a trial court could be clearly convinced that Beyke's use of the disputed

strip was not permissive.

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Finally, Marquart and Brown argue that, because Beyke's brothers,

see note 1, supra, did not make a claim to the disputed strip, she cannot

show that she exerted actual possession of that property. They cite no

authority to support that contention. In fact, as Beyke points out,

Alabama law holds that "possession of property by one claiming to be a

cotenant may establish title through adverse possession in all cotenants."

Green v. Cottrell, 188 So. 3d 668, 672 (Ala. Civ. App. 2015). Therefore,

Beyke's brothers' failure to pursue a claim of adverse possession over the

disputed strip does not preclude Beyke from being able to sustain her

claim.

Based on the record before us, we conclude that Beyke presented

substantial evidence, clear and convincing in nature, demonstrating that

genuine issues of material fact exist regarding her claim of adverse

possession of the disputed strip and whether the boundary line between

the north lot and the south lot had been established by the fence line that

existed when Beyke moved into her house in 1995. In reaching this

determination, we are not to be understood as holding that the fence line

is, in fact, the boundary line. We hold only that, at this point in the

litigation, i.e., at the summary-judgment stage, Beyke has presented

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substantial evidence sufficient to overcome Marquart and Brown's

contention that there exists no genuine issue of material fact and that

they were entitled to a judgment as a matter of law.

The parties ask this court to reinstate their respective claims that

the trial court dismissed when it entered the summary judgment

regarding Beyke's claim for adverse possession. Because the summary

judgment is reversed, it is necessarily set aside, meaning that there is no

longer a final judgment and resolution of the remaining claims is subject

to revision. See Miller v. Santiago, 642 So. 2d 446, 447 (Ala. 1994). The

dismissed claims, which all appear to be dependent on a determination

of the boundary line, can therefore be reinstated on remand. See id.

Therefore, we also reverse that portion of the summary judgment

dismissing those claims. Nonetheless, we leave it to the trial court to

determine in the first instance whether reinstatement of those claims is

warranted.

Conclusion

Based on the foregoing, we reverse the trial court's summary

judgment to the extent that it found in favor of Marquart and Brown

regarding Beyke's claim for adverse possession of the disputed strip and

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to the extent that it dismissed the parties' other claims. The cause is

remanded for further proceedings.

CL-2024-0513 -- REVERSED AND REMANDED.

CL-2024-0527 -- REVERSED AND REMANDED.

Moore, P.J., and Edwards, Hanson, and Lewis, JJ., concur.

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