Deal v. Hubert

• Court: Alabama Supreme Court
• Writing for the Court: SOMERVILLE, J.
• Citation: Deal v. Hubert, 209 Ala. 18, 95 So. 349 (Ala. 1923)
• Decision Date: 18 January 1923
• Docket Number: 4 Div. 949.
• Parties: DEAL ET AL. v. HUBERT ET AL.

95 So. 349

209 Ala. 18

DEAL ET AL. v. HUBERT ET AL.

4 Div. 949.

Supreme Court of Alabama

January 18, 1923

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action by Ethel Hubert, Arthur Hodges, Wilmer Hodges, and Elmer Hodges, by her next friend, against Genus Deal, George Deal and Travis Mixon. Judgment for plaintiffs and defendants appeal. Reversed and remanded.

Espy &amp Hill, of Dothan, for appellants.

Reid &amp Doster and Lee & Tompkins, all of Dothan, for appellees.

SOMERVILLE J.

Plaintiff's witness Bishop testified that he was a civil engineer and the county surveyor, and that he had surveyed the lands and lines in controversy, and made a substantially correct map thereof. He was properly allowed to state that the map "showed his survey."

Referring to a blazed piece of timber produced in court, and shown to have been taken from the line of survey, the witness was allowed to say: "There were some little rises on each side there, which forced me to the conclusion I ought to find something." The witness was basing his survey on the "field notes" and the marks or "witnesses" indicated therein, and we see no objection to his comment, as an expert in such matters, as to the significance of those marks. Certainly the statement was not prejudicial.

This witness was properly allowed to state that, at a certain point, he went south as far as he "thought the measurement should be made according to the [field] notes." An expert surveyor may properly act upon his opinion or conclusion based on relevant data, and may state that he did so.

It was error, however, to allow this witness to support the accuracy of his own survey by stating that "in Mickle's run, Mickle's stob was set at the right place." Mickle was another surveyor, and, there being nothing to show that his survey was prima facie evidence of the true line as against this defendant, what he did was res inter alios acta, and should have been excluded. May v. Willis, 200 Ala. 583, 76 So. 941. For the same reason, it was error to allow the witness Hodge to compare the Bishop and the Mickle lines of survey, and to state that they ran right together, or practically together, or were the same, at designated points, or on designated courses. This witness' allusions to the line said to have been run by Hardwick, and the placing of a stob thereon by the latter, were subject to the same objection, and should have been excluded.

Where the location of section lines, or their subsidiaries, is in dispute, a witness who is not an expert surveyor may testify to existing and visible lines and monuments which have been adopted or assented to by adjacent owners, but he cannot, upon such knowledge alone, give his opinion as to what is the true line. The witness Ham did not come within the class of experts held competent for that purpose in Pennington v. Mixon, 199 Ala. 74, 74 So. 238, and his opinion or conclusion as to where the true line was, was properly rejected.

Defendant's most important witness was one Crawford, who testified that he had been county surveyor, and that about a year before the trial he had run the boundary line in question, giving the details of his survey.

Plaintiffs then recalled their witness Hodge, who testified...