Billups v. Gilbert

• Citation: 195 Ala. 518,70 So. 145
• Decision Date: 04 November 1915
• Docket Number: 5 Div. 580
• Parties: BILLUPS v. GILBERT.
• Court: Supreme Court of Alabama

70 So. 145

195 Ala. 518

BILLUPS v. GILBERT.

5 Div. 580

Supreme Court of Alabama

November 4, 1915

Rehearing Denied Dec. 2, 1915

Appeal from Chancery Court, Russell County; W.R. Chapman Chancellor.

Bill by Mary E. Gilbert against James B. Billups. From a decree for complainant, defendant appeals. Affirmed.

A.A Evans, of Montgomery, and Evans, Ferrell & Glenn, of Seale for appellant.

Norman & Son, of Union Springs, and Glenn & De Graffenried, of Seale, for appellee.

McCLELLAN J.

This bill was filed by Mary E. Gilbert against Billups and Nipper. The object of the bill was to establish the dividing line between adjoining quarter sections, viz., the northeast quarter of section 14, township 15, range 29, in Russell county, belonging to Billups, and the southeast quarter of that section, belonging to complainant. The bill invoked the jurisdiction expressed in Code, § 3052, as follows:

"The powers and jurisdiction of courts of chancery extend. *** 5.--To establish and define uncertain or disputed boundary lines."

By, and in consequence of, written agreements executed by the complainant and Billups and, also, by their respective solicitors, a consent decree was entered by the court wherein the true line between these quarter sections was decreed to--

"be the half section line of section 14, *** that the government line of the northeast quarter of said section *** is the true and correct dividing line between the lands of the complainant and the respondent in this cause, so far as the lands involved in this controversy are concerned."

A commission of three, to lay and mark the line thus agreed upon, was constituted by the decree, as the agreement binding the parties provided. No provision was made in the decree for a report by these commissioners of the data or evidence upon which they relied or acted in laying and marking the line thus established upon the agreement of the parties. The commission reported their action in locating the line and therein described the line marks and its location, which description the court carried into a formal decree. Under the agreements and under the consent decree, Billups cannot be heard to now complain that no basis for revision of the act of the commissioners in locating and marking the line was provided in the consent decree, nor that the data or evidence or method used or relied upon by the commissioners in locating the line on the soil was not required by the consent decree, or was not brought before the court in such manner as to admit of objections, and thereupon revision thereof by the court; no fraud on the part of the commissioners being asserted. If it was the desire of the parties to have a review or revision of the act of the commissioners in laying and marking the agreed line, that matter should have been saved in the consent decree.

In the agreement, and carried therefrom into the decree, was provision authorizing the commissioners-- "to ascertain and report to the court, after they have established the location of said half section line from evidence to be submitted to them as to whether or not the respondent in this cause, J.B. Billups, or any tenant of his, or other person in his employ, have been using, cultivating, or otherwise occupying any of the lands in the S.E. 1/4 of said section 14, and if it be ascertained and determined by said commissioners from such evidence that the said Billups has been using, cultivating, or otherwise occupying any of the land in the S.E. 1/4 of said section 14, then the said commission shall ascertain the value of the use and occupation of that portion of the S.E. 1/4 of said section 14 so ascertained by them to have been in the use, *** of said J.B. Billups *** and report the value of the same to this court."

In accordance with this warrant and authority of the consent decree, the commissioners reported to the court that they had ascertained that Billups, or his tenants or employés, had used, etc., a part of the land belonging to the complainant, and that the value thereof was $20. The court confirmed the report in this respect; and a personal decree for that sum was thereupon rendered against Billups.

It is insisted for appellant that the chancery court was without rightful power in this instance, under the quoted definition of its jurisdiction in Code, § 3052, to try or to determine...