Braxton v. Stewart

• Decision Date: 06 April 1984
• Citation: 451 So.2d 266
• Parties: Leroy BRAXTON and Hazel Braxton v. Henry STEWART. 82-1050.
• Court: Alabama Supreme Court

Page 266

451 So.2d 266

Leroy BRAXTON and Hazel Braxton v. Henry STEWART.

82-1050.

Supreme Court of Alabama.

April 6, 1984.

Rehearing Denied June 1, 1984.

Alice L. Anderson, Enterprise, for appellants.

James W. Kelly, Geneva, for appellee.

FAULKNER, Justice.

This is a land line dispute. Leroy and Hazel Braxton filed this action, seeking to establish the boundary between their property and property owned by Henry Stewart. The parties entered into an agreement, which was incorporated into the court's decree. It provided that the property in question, which is triangularly shaped, is bordered by a section line, by a county road, and by an abandoned road known as the Geneva-DeFuniak Road. The order provided that the parties were to agree on a surveyor to survey the property and establish the location of the boundaries. The parties were to then have a fence installed along the lines established by the survey. The costs of the fence and the survey were to be split between the parties.

On June 8, 1982, Mr. Stewart filed a motion alleging that the parties had been unable to agree on a surveyor and requesting further orders to facilitate the implementation of the decree. The Braxtons filed a response to the motion, alleging that Mr. Stewart had shot at them and that he had failed to allow the plaintiffs to use their property. They requested that the judgment be set aside and that the case be returned to the jury docket. The Braxtons have also apparently filed an independent action, which they refer to as a "bill of review," in an attempt to set aside the judgment. After a hearing the court ordered that Charles Bowdoin, a registered land surveyor, be allowed to survey the property. Mr. Bowdoin surveyed the property and filed a plat of the land with the court.

On September 23, 1982, Mr. Stewart filed a motion requesting that a hearing be set with regard to implementing the order with respect to erection of the fence. The Braxtons filed an objection to the survey, which reiterated their request to set aside the judgment. After another hearing, the court entered an order providing that a sheriff's deputy was to accompany the Braxtons to the land to enable them to view the lines established by the surveyor.

After viewing the lines the Braxtons filed another objection to the survey. They alleged that the price of the survey was too high and that the survey was inaccurate in several respects. They also reasserted their motion to set aside the judgment, alleging that the defendant had violated the court's order. After a hearing, at which the surveyor testified, the court entered the order appealed from, dated April 13, 1983. It found that the plaintiffs' objections to the survey were...