Ashurst v. McKenzie

CourtSupreme Court of Alabama
Writing for the CourtMCCLELLAN, J.
Citation92 Ala. 484,9 So. 262
PartiesASHURST v. MCKENZIE ET AL.
Decision Date14 April 1891

9 So. 262

92 Ala. 484

ASHURST
v.
MCKENZIE ET AL.

Supreme Court of Alabama

April 14, 1891


Appeal from chancery court, Macon county; JOHN A. FOSTER, Chancellor.

The bill in this case has a fourfold purpose,-to remove cloud from complainants' title, quiet titles, establish disputed boundaries, and to enjoin trespasses,-and was filed by R. T. Ashurst against P. R. McKenzie and another. On final submission on pleadings and proof the chancellor granted the relief prayed for. Defendants appeal.

S. B. Paine, for appellants.

P. R. McKenzie, for appellee.

MCCLELLAN, J.

There are suggestions in the present bill looking to relief by way of quieting and removing a cloud from complainant's title to the land in controversy; but neither the averments nor proof are sufficient to authorize such relief.

1. With respect to bills to quiet titles we have no such statutory provisions as exist in some of the states under which such bills have come to be an ordinary mode of trying disputed titles, and the jurisdiction of chancery can be invoked to this end only upon the general principles of equity jurisprudence, which afford this remedy to a complainant "in possession, holding the legal title when successive actions at law, all of which had failed, were brought against him by a single person out of possession, or when many persons assert equitable titles against a plaintiff in possession holding the legal or an equitable title." 3 Pom. Eq. Jur. § 1396. None of these necessary facts are in this case, and the suggestion as to relief by way of quieting titles may be dismissed from further consideration.

2. As to removing a cloud from complainants' title, the suggestion is equally lacking in averment and proof. There is no allegation or evidence of any muniment of title, proceeding, written contract, or paper showing any color of title in the defendant, which could cast a shadow on the title of complainants to any part of the land. There is no overlapping of description in the muniments held by either. The lands of complainants and defendant join. The line which separates them is in dispute, and is to be determined by evidence aliunde. Each admits that the other has title up to his line, wherever it may be, and the title papers of neither fix its precise location; so that there is no paper the existence of which clouds the title of either party, and nothing could be delivered up and canceled under the decree of the court undertaking to remove a cloud. That suggestion may also be summarily dismissed. The real purposes of the bill appear to be two: First, to establish by a decree of the court a disputed boundary line between the coterminous proprietors; and, second, to enjoin the defendnant from trespassing upon any part of the land thus found to belong to complainants.

3. The jurisdiction of chancery to establish disputed boundaries is ancient and well defined. It does not arise upon any mere dispute as to the location of the boundary between adjacent parcels of land, or even upon a mere dispute as to such location of a confused or obliterated line. There must, in additon to all this, be some special ground of equitable interposition. Such grounds, it is said, may be predicated of the fraud or neglect of duty of the defendant whereby the confusion and obliteration has resulted, as where the line is marked upon the surface of the ground, and is plowed over and obliterated for the purposes of a fraudulent insistence that it is elsewhere than at its true location, or by a person having at the time possession of his own and the adjoining parcel, and thus being under a duty of maintaining and preserving the demarkation of the two tracts. 3 Pom. Eq. Jur. §§ 1384, 1385; Wake v. Conyers, 1 Eden, 331; Rous v. Barker, 4 Brown Parl. Cas. 660; Speer v. Crawter, 2 Mer. 410-417; Norris' Appeal, 64 Pa. St. 275; Hill v. Proctor, 10 W.Va. 59; Wetherbee v. Dunn, 36 Cal. 249. And where the line is marked only by monuments at its terminal points, the boundary running directly between them, the destruction of these monuments under like circumstances, and consequent confusion and dispute as to the location of the line, would present a case for equitable action in fixing and declaring the boundary. In the case at bar it is alleged that the true boundary was indicated originally both by a road or "turn row" running the whole length of the coterminous ownership between or on the line between the two parcels, and by monuments standing at either end of the line thus superficially indicated; and, while it is averred that the "turn row" has been obliterated by the defendant, it is also alleged that the monuments standing at either end of the boundary are still standing. Not only so, but it appears more or less clearly in the averments, and with entire clearness in the [9 So. 263] testimony, that the line between these monuments was at the time the bill was filed and at the time of the hearing...

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31 practice notes
  • State ex rel. Atty. Gen. v. Ward, 6 Div. 619
    • United States
    • Supreme Court of Alabama
    • 28 Septiembre 1961
    ...75 So. 881; Driver v. New, 175 Ala. 655, 658, 57 So. 437; Hamilton v. Brent Lumber Co., 127 Ala. 78, 84, 28 So. 698; Ashurst v. McKenzie, 92 Ala. 484, 490-491, 9 So. 262; 28 Am.Jur., Injunctions, § 75, p. 572; 43 C.J.S. Injunctions § 54, p. 513. Although a permanent injunction is prayed for......
  • Rutherford v. The Lucerne Canal and Power Company
    • United States
    • United States State Supreme Court of Wyoming
    • 18 Febrero 1904
    ...v. Larson, 84 Ia. 649; Tautlinger v. Sullivan, 80 Ia. 218; Ladd v. Osborne, 73 Ia. 95; Bolton v. McShane, 67 Ia. 208; Ashurst v. McKenzie, 92 Ala. 484; Stroup v. Chalcraft, 52 Ill.App. 608; Ellis v. Wren, 84 Ky. 254; Hannon v. Landers (Tex.), 41 S. W., 378; Arnold v. Ry. Co., 55 N.Y. 661; M......
  • Yauger v. Taylor, 2 Div. 916
    • United States
    • Supreme Court of Alabama
    • 24 Mayo 1928
    ...in such cases? We turn now to the original jurisdiction in equity to settle uncertain and disputed boundary lines. In Ashurst v. McKenzie, 92 Ala. 484, 9 So. 262, it was said: "The jurisdiction of chancery to establish boundaries is ancient and well defined. It does not arise upon any mere ......
  • Gibson v. McGurrin, 2060
    • United States
    • Supreme Court of Utah
    • 10 Enero 1910
    ...Co. v. Mining Co., 5 Utah 3, 39-43, 56-59, 64; 6 Am. Eng. Enc. of Law 159; 1 Story, Eq. Jur., Secs. 76, 616, 619; Ashurst v. McKenzie, 92 Ala. 484; 4 Pomeroy's Eq. Jur., Sec. 1396; Richie v. Dorland, 6 Cal. 33; Kunkle v. Lumber Co., 29 Utah 21; Perigo v. Dodge, 9 Utah 3; Park v. Wilkinson, ......
  • Request a trial to view additional results
31 cases
  • State ex rel. Atty. Gen. v. Ward, 6 Div. 619
    • United States
    • Supreme Court of Alabama
    • 28 Septiembre 1961
    ...75 So. 881; Driver v. New, 175 Ala. 655, 658, 57 So. 437; Hamilton v. Brent Lumber Co., 127 Ala. 78, 84, 28 So. 698; Ashurst v. McKenzie, 92 Ala. 484, 490-491, 9 So. 262; 28 Am.Jur., Injunctions, § 75, p. 572; 43 C.J.S. Injunctions § 54, p. 513. Although a permanent injunction is prayed for......
  • Rutherford v. The Lucerne Canal and Power Company
    • United States
    • United States State Supreme Court of Wyoming
    • 18 Febrero 1904
    ...v. Larson, 84 Ia. 649; Tautlinger v. Sullivan, 80 Ia. 218; Ladd v. Osborne, 73 Ia. 95; Bolton v. McShane, 67 Ia. 208; Ashurst v. McKenzie, 92 Ala. 484; Stroup v. Chalcraft, 52 Ill.App. 608; Ellis v. Wren, 84 Ky. 254; Hannon v. Landers (Tex.), 41 S. W., 378; Arnold v. Ry. Co., 55 N.Y. 661; M......
  • Yauger v. Taylor, 2 Div. 916
    • United States
    • Supreme Court of Alabama
    • 24 Mayo 1928
    ...in such cases? We turn now to the original jurisdiction in equity to settle uncertain and disputed boundary lines. In Ashurst v. McKenzie, 92 Ala. 484, 9 So. 262, it was said: "The jurisdiction of chancery to establish boundaries is ancient and well defined. It does not arise upon any mere ......
  • Gibson v. McGurrin, 2060
    • United States
    • Supreme Court of Utah
    • 10 Enero 1910
    ...Co. v. Mining Co., 5 Utah 3, 39-43, 56-59, 64; 6 Am. Eng. Enc. of Law 159; 1 Story, Eq. Jur., Secs. 76, 616, 619; Ashurst v. McKenzie, 92 Ala. 484; 4 Pomeroy's Eq. Jur., Sec. 1396; Richie v. Dorland, 6 Cal. 33; Kunkle v. Lumber Co., 29 Utah 21; Perigo v. Dodge, 9 Utah 3; Park v. Wilkinson, ......
  • Request a trial to view additional results

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