Comer v. Limbaugh
| Decision Date | 24 January 1952 |
| Docket Number | 6 Div. 157 |
| Citation | 57 So.2d 72,256 Ala. 655 |
| Parties | COMER v. LIMBAUGH. |
| Court | Alabama Supreme Court |
Wilkinson & Skinner, Birmingham, for appellant.
Geo. P. Bondurant and Hayden & Hayden, Birmingham, for appellee.
This is a suit in equity by appellee, complainant below, against appellant, respondent, to establish and define a disputed boundary line between adjoining lands. Code 1940, Title 47, § 3; Title 13, § 129(5). The appeal is from an interlocutory decree, overruling a demurrer to the bill as last amended. The decree was rendered October 19, 1950, and the appeal was within thirty days therefrom.
The bill alleges that complainant is the owner of a tract of land situated in Jefferson County, a part of which is located in the northeast quarter of the northwest quarter of Section 30, Township 14, Range 1, West, and more particularly described in a deed from Slimp and wife to complainant, a copy of which is made Exhibit 'A' to the bill. It is further alleged that respondent is reputed to own or claims to own an adjacent tract, described as all that part of the northeast quarter of the northwest quarter of said Section 30, lying between the old Tennessee Road and north of J. A. Abele tract, containing one and one-half acres, more or less and more particularly described in a deed from McCombs and wife to respondent, a copy of which is made Exhibit 'B' to the bill.
We here set out paragraph 5 of the original bill:
It is alleged 'that there is a dispute between Complainant and defendant as to the correct location of the boundary line between the premises owned by complainant and owned or claimed to be owned by the defendant.'
It is also alleged that prior to the filing of the bill complainant made demand upon respondent to establish the boundary without the necessity of litigation for the purpose, but that respondent failed to respond thereto; that by reason of and as a proximate consequence of the erection of such improvements upon complainant's premises, said premises have been rendered of greatly less value to complainant and that complainant has been deprived of the use thereof or a part of the premises for a long time, and has been vexed, harassed and annoyed, and has been put to trouble, inconvenience and expense in and about his efforts to protect himself against such trespasser and as a result of such trespass.
The prayer of the bill is that the court will 'finally determine and establish the location of said boundary line and will finally and completely settle said boundary line dispute and will cause a survey to be made,' etc., and that a judgment for damages be rendered. There is also a prayer for general relief.
Respondent's demurrer to the original bill was overruled and he filed an answer and cross-bill. Complainant then amended his bill by striking out paragraph 5 and substituting the following: 'That the defendant is claiming a location of the dividing line between the tracts of land owned by the Complainant, and the defendant to be at a place or location further West and further south than complainant avers the same is actually located, and in pursuance of said claim defendant has erected certain improvements, including a fence, at a point entirely west of the westmost line and at a point entirely south of the southmost line of the tract owned or claimed by the defendant and are in truth and in fact located upon the premises owned by complainant, and the said complainant is unable to state the true location of complainant's true boundary line at said points other than the same are described in Complainant's Exhibit 'A'.'
Respondent's demurrer to the bill as thus amended was overruled and he filed an amended answer and cross-bill, and thereafter the complainant filed another amendment to his bill by adding paragraphs 9 and 10. Paragraph 9, in substance, claims ownership of lands as described in Exhibit 'A 1,' referred to therein. Paragraph 10 alleges that, in order to make the description of the property more certain and to more fully describe the land in the conveyance from Slimp and wife, dated in the year 1934, complainant obtained a further deed from Slimp, dated in the year 1947, and being said Exhibit 'A 1.'
Respondent objected to this amendment and moved to strike on the ground that the proposed amendment seeks to establish rights based in an alleged conveyance executed after the institution of the suit. The court below (September 8, 1948) sustained the motion to strike as to paragraph 10 on the premise that the deed, executed long after the suit was filed, could not be made the basis of complainant's relief. Respondent filed a demurrer to the bill as amended, the same being directed to paragraph 9. The court sustained the demurrer by decree of April 13, 1949. Thereupon complainant again amended his bill by 'adding after Section 5 the following:
The bill as finally amended consisted, as did the original, of eight paragraphs, the substantial difference between the original bill and as amended being an extension of the disputed line; that is to say, the line between the two tracts both on the west and on the south. While paragraph 5 as first amended alleged that complainant was unable to describe the line at a point other than as it was described in complainant's deed, paragraph 5a, added by the final amendment, attempted to set out the line by metes and bounds and refers to the map as designated. We cannot accede to appellant's contention that there is a repugnancy between the two paragraphs. As nearly as we can determine the description set out and the map attached do not differ in material respects from the complainant's original deed.
Very clearly, we think, the bill as amended substantially meets the requirements of a bill to establish and define a disputed boundary line. In such a suit, averments in the language of the statute that the boundary line between the land of complainant and the land of respondent is uncertain or disputed, is not a mere statement of a legal conclusion, but is a statement of an issuable and traversable fact. Code, Title 13, § 129(5); Wise v. Massee, 239 Ala. 559, 196 So. 275.
Where the purpose of a bill to establish and define a disputed boundary line seeks the aid of the court of equity to establish and define the true boundary line, rather than to have a particular line (such as a...
To continue reading
Request your trial
-
Ala. Power Co. v. Keller, 2150979
...628, 634, 109 So. 2d 721, 726-27 (1959). See Steele v. McCurdy, 269 Ala. 271, 279,112 So. 2d 336, 344 (1959); and Comer v. Limbaugh, 256 Ala. 655, 660, 57 So. 2d 72, 75 (1952) ("[A]ll matters relating or incident to the suit to establish a disputed boundary may be determined. ... The genera......
-
Federal Deposit Ins. Corp. v. Equitable Life Assur. Soc. of U.S.
...of error can be made upon a decree * * * which is barred.' Foley v. Leva, 101 Ala. 395, 399, 13 So. 747, 749. Cf. Comer v. Limbaugh, 256 Ala. 655, 660, 57 So.2d 72. 'There are 20 assignments of error, the first 14 of which are addressed to the decree of July 8, 1957. It follows, from what w......
-
Callahan v. Weiland
...bill was to eliminate it until the appellant filed an amendment thereto. Savage v. Savage, 246 Ala. 389, 20 So.2d 784; Comer v. Limbaugh, 256 Ala. 655, 57 So.2d 72. Even so, evidence was received going to the very aspect of the cross bill seeking to inject the rezoning ordinance into the is......
-
City of Huntsville v. Miller
...See: McCurdy v. Samples, 262 Ala. 485, 488-489, 80 So.2d 224; Pritchett v. Wade, 261 Ala. 156, 162, 73 So.2d 533; Comer v. Limbaugh, 256 Ala. 655, 660, 57 So.2d 72; Lane v. Roma Lumber Co., 234 Ala. 551, 553, 176 So. 283; McDowell v. Herren, 219 Ala. 370, 371, 122 So. 336; Bromberg v. Eugen......