Baldwin v. Harrelson, 4 Div. 768.

• Decision Date: 20 December 1934
• Docket Number: 4 Div. 768.
• Citation: 229 Ala. 469,158 So. 416
• Parties: BALDWIN v. HARRELSON et al.
• Court: Alabama Supreme Court

158 So. 416

229 Ala. 469

BALDWIN v. HARRELSON et al.

4 Div. 768.

Supreme Court of Alabama

December 20, 1934

Appeal from Circuit Court, Covington County; Emmet S. Thigpen Judge.

Bill by B. A. Baldwin against Charlie Harrelson and others to establish a boundary line. From a decree fixing the line complainant appeals.

Affirmed in part, and remanded for further proceedings.

Simmons & Simmons, of Opp, for appellant.

E. O Baldwin, of Andalusia, for appellees.

BOULDIN Justice.

Bill in equity to settle and establish an uncertain or disputed boundary line between lands of coterminous owners. Code, § 6439 et seq.; section 6465, subd. 5.

This is the second appeal. See Baldwin v. Harrelson et al., 225 Ala. 386, 143 So. 558.

Pursuant to our decision to the effect that pleading and evidence made a case in equity which required the court to fix, determine and describe the true line, the trial court proceeded to hear the case on the same pleadings and proof, and decreed that the true boundary "is that certain wire fence which was located between the lands of the complainant and the lands of the respondents at the time the bill of complaint in this cause was filed." Complainant appeals from this decree.

The line in dispute is an interior subdivision line, between the N.W.1/4 of S.E.1/4 and the S.W.1/4 of S.E.1/4 of Sec. 29, Tp. 4, R. 10, in Covington county.

Complainant, Baldwin, owns north of this line and respondents south.

In 1920, the lands now owned by complainant were owned by J. T. Courson, and those now owned by respondents were owned by C.J. Woodham.

Mr. Woodham, in 1920, proceeded to have his lands surveyed, subdivided into town lots, and platted as a subdivision of the town of Opp. He employed Morgan D. Jones, a land surveyor of experience, who, it appears, had theretofore made some surveys in this section.

Preliminary to making the plat, Mr. Jones undertook to locate this subdivision line between the properties. It appears from his and other testimony that no effort was made to survey the section lines, and then subdivide the section in so far as necessary to ascertain this subdivision line. Indeed, it appears that the field notes of the original survey called for marked trees, ditches, etc., which have disappeared with time, so that the true section corners and lines are now best evidenced by corners and boundaries long recognized in the community and acted upon by the landowners in exercising possession, etc.

Evidence for respondents tends to show that Mr. Jones, after doing some preliminary surveying, concluded an ancient fence row, accepted and recognized by adjoining owners as the boundary line between these parties for twenty years or more, was or should be then treated as the true boundary; that, accordingly, the line was surveyed and located along and with this old fence, or fence row, varying a few feet at places where the old fence was out of alignment; that Mr. Jones marked the line by setting stakes at distances of 100 feet, marking also the corners of lots in the plat he was surveying.

Following this survey the wire fence mentioned in the court's decree was erected.

All parties contend for and agree that the old fence row is, and should be, the true boundary between these forties.

But complainant (appellant) insists the wire fence is not on the old fence row, but runs 20 to 30 feet north of same.

Respondents insist that the wire fence is on the Jones' survey, a straight line, conforming to the general alignment of the old fence, and that, because the old fence was not straight at places, the surveyed line at such point is sometimes north and sometimes south of the old fence, not exceeding three to four feet.

The bill was filed in 1928, less than ten years after this survey and the building of the wire fence. Hence, the question of adverse possession vesting title to the wire fence is not in the case. The evidence is in sharp conflict on the issue above outlined.

The evidence was not heard ore tenus by the trial court, and we are required by statute to review same without presumption in favor of his finding.

It is clear the survey was made and stakes set with the purpose of locating and fixing the boundary. This is emphasized by the fact that Mr. Woodham was platting his land with a view to sale of town lots in conformity to the plat.

It is without dispute that Mr. Courson, then owning the land north of the line, knew of the survey, was present and assisted in the building of this fence. While Mr. Courson, as a witness for complainant, disclaims any agreement to such location yet his testimony, as a whole, fully sustains a finding of acquiescence on his part, as well as active...