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02/15/2008

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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2007-2008

_________________________ 2060787 _________________________ Robert Day and Anita Day v. Kenneth Davis and Myra Davis Appeal from Cleburne Circuit Court (CV-04-11) THOMPSON, Presiding Judge. Kenneth Davis and Myra Davis sued their coterminous landowners, Robert Day and Anita Day, seeking a determination of the boundary line between the parties' properties and seeking damages on claims alleging trespass and conversion.

2060787 In their complaint, the Davises alleged that they held valid title to the property in dispute or, alternatively, that they had established ownership of the property through adverse possession. The Days answered and counterclaimed, asserting

that they owned the property in dispute and seeking, among other things, damages for trespasses they contended the

Davises had committed. The parties agreed to "bifurcate" the trial of the action and to first address only the issue of the location of the boundary line between their properties. On March 13, 2007,

the trial court received ore tenus evidence regarding the location of the common boundary. Some evidence was presented

on the issue of the Davises' alleged adverse possession of the property in dispute, but, because the Days' witness for their defense of the adverse-possession claim was not present, the trial court stated: "We will take it one step at a time, and I will rule on my opinion of the land line, and then when I do that, if the adverse possession is still in issue, then I will take what you've presented already and we will come back and either here or in Calhoun County and do that or go forward, whatever we need to do."

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2060787 On April 18, 2007, the trial court entered an order in which it determined that the boundary line advocated by the Davises was the That correct order boundary specified between that, the "[d]ue parties' to the

properties.

agreement of the parties to bifurcate the issues of this case and try only the issue of the boundary [line] between the two properties, this Court reserves ruling on all other issues presently before it." The Days filed a motion purportedly pursuant to Rule 59(e), Ala. R. Civ. P.1 The trial court entered an order on In that

May 22, 2007, purporting to deny the Days' motion.

order, it specified that it had based its ruling on its consideration of the evidence and surveys submitted by the parties and that it had reached its ruling without considering the issue of adverse possession. The Days then appealed, and

this case was transferred to this court by the supreme court, pursuant to

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Alabama Law