Camp v. Dunnavent

• Citation: 109 So. 362,215 Ala. 78
• Decision Date: 30 June 1926
• Docket Number: 8 Div. 802
• Parties: CAMP v. DUNNAVENT.
• Court: Supreme Court of Alabama

109 So. 362

215 Ala. 78

CAMP v. DUNNAVENT.

8 Div. 802

Supreme Court of Alabama

June 30, 1926

Appeal from Circuit Court, Morgan County; J.E. Horton, Judge.

Bill in equity by J.O. Camp against C.A. Dunnavent. From a decree dissolving preliminary injunction, complainant appeals. Reversed, rendered, and remanded.

Eyster & Eyster, of Albany, for appellant.

Almon &amp Almon, of Albany, for appellee.

BOULDIN J.

The bill is to establish and define the disputed boundary line between adjoining city lots. Incidental to this relief, the bill prayed for an injunction restraining respondent from destroying or removing a concrete retaining wall erected on the boundary line as claimed by complainant. The appeal is from a decree dissolving the temporary injunction. On motion to dissolve, the hearing was upon bill and answer, with supporting affidavits. The case made by the bill, and supporting affidavit, is briefly this:

Complainant owns a residence lot described by lot number as shown by the plat of an addition to the city of Decatur. Respondent owns the adjoining lot described by lot number on another plat. Complainant's lot is in Decatur and respondent's in Albany. The city of Decatur laid a sidewalk abutting complainant's lot prior to his purchase in 1914. Complainant paid the assessment; he took possession claiming title to the terminus of the walk, built his residence upon the lot, and has occupied same for more than 10 years prior to bringing suit. After complainant built, a residence was built on the adjoining lot by its then owner, who recognized the boundary as marked by the terminus of the walk. Respondent bought the lot in 1919. Thereafter a concrete wall was erected by complainant and respondent at their joint expense extending from the terminus of the walk back some 40 feet between the adjoining properties as held and occupied by them. Complainant alleges that the wall was erected upon the line agreed upon as the permanent boundary between the lots that he filled in his lot to the wall and has maintained it to the wall as part of his lawn and flower garden; that recently respondent has disputed the line so located claiming the concrete wall encroaches upon his lot; that he and his agents threatened to tear down and remove the concrete wall, had come on the ground for such purpose against complainant's protest; that the removal of the wall would mar the beauty and otherwise injure his premises etc. Respondent admits the building of the concrete wall at joint expense, denies there was any agreement as to the boundary line or recognition or acquiescence therein, alleges it was built for convenience of parties, his interest being to prevent the flow of surface waters from complainant's lot upon that of respondent; that, in fact, the wall is located some 2 1/2 feet over on his side of the true boundary. He denies that he or his agents were threatening to destroy or break down the wall, but says:

"*** Respondent was going to rebuild and remove said concrete wall and put it on the line surveyed by the city engineer of Albany and Decatur between complainant and respondent, and this was to be done without any expense or damage to the complainant."

He does not deny plaintiff's alleged possession, admits that plaintiff formerly maintained a terrace and the wall was erected next to the terrace. Respondent is corroborated by affidavit of the city engineer as to the true boundary as shown by the plats.

A court of equity has jurisdiction "to establish and define uncertain or disputed boundary lines, whether the bill contains an independent equity or not."...