Ballard v. W.T. Smith Lumber Co., 3 Div. 642

• Decision Date: 26 February 1953
• Docket Number: 3 Div. 642
• Parties: BALLARD et al. v. W. T. SMITH LUMBER CO.
• Court: Alabama Supreme Court

Page 376

63 So.2d 376

258 Ala. 436

BALLARD et al. v. W. T. SMITH LUMBER CO.

3 Div. 642.

Supreme Court of Alabama.

Feb. 26, 1953.

Paul D. Hartley, Greenville, and Hill, Hill, Whiting & Harris, Montgomery, for appellants.

Arthur E. Gamble, Jr. and Calvin Poole, Greenville, for appellee.

STAKELY, Justice.

This is an appeal from a decree of the equity court overruling the demurrer of James Richard Ballard and Esther Ballard (appellants) to the bill of complaint filed by W. T. Smith Lumber Company (appellee). According to the bill James Richard Ballard and Esther Ballard are the owners of the NE Quarter of the NW Quarter of Section 4, Township 6, Range 15, Covington County, Alabama. W. T. Smith Lumber Company is the owner of the SE Quarter of the SW Quarter of Section 33, Township 7, Range 15, Butler County, Alabama. The allegations of the bill further show that W. T. Smith Lumber Company is a coterminous landowner with the respondents James Richard Ballard and Esther Ballard and that the lines dividing the lands of the complainant W. T. Smith Lumber Company and those of the respondents James Richard Ballard and Esther Ballard are unsettled and disputed and that the respondents James Richard Ballard and Esther Ballard are continually encroaching upon what complainant verily believes to be lands owned by it in the foregoing described government subdivision and that it is necessary to have the line between the complainant and the respondents located and established and defined.

It is further alleged that the complainant has made every reasonable effort to establish the line between itself and the respondents James Richard Ballard and Esther Ballard and has been unable to reach any agreement with them as to the true location of the boundaries between them.

It is further alleged that James Richard Ballard and Esther Ballard have cut considerable timber over and across the disputed lines and appropriated such timber so cut to their own use and have refused and continue to refuse to make any settlement with the complainant for the timber which they have so cut and appropriated to their own use.

In the prayer of the bill the complainant asks the court to order a survey to fix the disputed line between the coterminous landowners and to locate land markers or other objects for the purpose of fixing and establishing the disputed line. It is further prayed that when the lines are so established James Richard Ballard and Esther Ballard be enjoined against interfering with the complainant's possession of the land owned by it adjoining their land. It is further prayed that the respondents be required to account to the complainant for the timber belonging to it, if any, which they have cut and appropriated to their own use.

It is obvious that the bill of complaint was filed under § 129, subdivision 5, Title 13, Code of 1940 and §§ 2-4, Title 47, Code of 1940, to establish and define an uncertain or disputed boundary line between coterminous landowners. The bill follows substantially the requirements of these statutes, it being worthy of note that the allegations of the bill show that the parties are coterminous landowners and that the lines defining the lands of the complainant from that of the respondents are unsettled and disputed. It so happens that the disputed line between these two landowners is the county line between Butler and Covington Counties. There is no merit in the contention that the court does not have jurisdiction of this case because the bill attempts to change or alter or establish a new and different county line. It appears from the bill of complaint that the purpose of the bill is simply to have the court locate and mark on the ground the line between the coterminous owners in order that the dispute between the parties may be settled. There is nothing in the bill which indicates a purpose or desire to ask the court to change or alter the true line which separates and defines the properties of the parties.

There can be no question of the jurisdiction of the equity court in this case to establish or define uncertain or disputed boundary lines between coterminous landowners. This jurisdiction is given to the circuit court, in equity, by statute and such jurisdiction is given without the necessity of alleging an independent equity. Sellers v. Valenzuela, 249 Ala. 627, 32 So.2d 517; Drewry v. Cowart, 250 Ala. 406, 34 So.2d 687; § 129, subdivision 5, Title 13, Code of 1940; §§ 2-4, Title 47, Code of 1940.

It is quite true that this court in the case of Marengo County v. Wilcox County, 215 Ala. 640, 112 So. 243, stated that, 'The Legislature alone has authority to establish or change the boundary line between counties.' As we have shown, however, there is no effort in the present bill to have the county line changed or altered, but only to have the line located and marked on the ground. In Marengo County v. Wilcox County, supra, this court said: 'The inquiry is, where is the lawful boundary line between the counties? This is a judicial question to be determined upon a construction of the defining statutes, with the aid of such other legal evidence as may be received in case...