Deese v. Odom, 1 Div. 367

• Citation: 218 So.2d 134,283 Ala. 420
• Decision Date: 23 January 1969
• Docket Number: 1 Div. 367
• Parties: Ethel S. DEESE et al. v. Joseph R. ODOM et al.
• Court: Supreme Court of Alabama

Page 134

218 So.2d 134

283 Ala. 420

Ethel S. DEESE et al. v. Joseph R. ODOM et al.

1 Div. 367.

Supreme Court of Alabama.

Jan. 23, 1969.

Kilborn, Darby & Kilborn, Mobile, for appellants.

Edw. P. Turner, Jr., Chatom, for appellees.

LIVINGSTON, Chief Justice.

This appeal is from a decree of the Circuit Court of Washington County, Alabama, in Equity, fixing a disputed boundary line.

The appellees, Odom and Turner, own separate parcels of land which join the East Boundary line of property owned by the appellants, Ethel S. and Glenn Deese. The appellants' land is described as follows:

"Northeast Quarter of Southwest Quarter and Southeast Quarter of Southwest Quarter in Section 17, Township 3 North, Range 3 West."

Appellee Odom owns approximately 60 acres adjoining on the East which land is described as follows:

"South Half of Northwest Quarter of Southeast Quarter and Southwest Quarter of Southeast Quarter, Section 17, Township 3 North, Range 3 West."

Appellee Turner owns approximately 20 acres adjoining that of appellee Odom on the North and also bordering on appellants' (Deeses') property on the East, and is described as follows:

"North Half of the Northwest Quarter of the Southeast Quarter of Section 17, Township 3 North, Range 3 West."

Appellee Odom filed a bill of complaint in the Circuit Court of Washington County, Alabama, in Equity, alleging a dispute as to the boundary line between the parties aforementioned, seeking the court's adjudication of the boundary line and damages for timber allegedly cut by the appellants. Appellee Turner also filed a bill of complaint alleging a dispute as to the boundary line between him and the Deeses, seeking the same relief as appellee Odom.

The appellants, Mr. and Mrs. Deese, filed their answer and cross bill to each suit, claiming as the boundary line "the old Kendall fence" and prayed that a surveyor be appointed by the court to locate said fence.

All the parties involved, through their respective solicitors, agreed that the two cases should be consolidated and the issues raised therein determined in one proceeding, with a separate decree to be entered in each case. This agreement was ratified by the trial court and an order consolidating the causes issued. The parties further agreed that a survey of the disputed property was necessary, and the court appointed a licensed surveyor, Mr. Ralph McVay, to survey and determine the location of the dividing line between the West Half of the Southeast Quarter and the East Half of the Southwest Quarter, Section 17, Township 3 North, Range 3 West, Washington County, Alabama, as well as the location of the old Kendall fence row.

The appellants subsequently amended their cross bill in each case so that if the old Kendall fence line be found not to be the dividing line between these coterminous properties, then, in that event, they claimed title by virtue of adverse possession.

The surveyor's report was filed with the court in April of 1965. Thereafter, exceptions were filed to the report on behalf of the appellants.

The consolidated cases came on for trial, and the court, after hearing the evidence, rendered separate decrees in each case establishing the boundary line as shown by the McVay survey. The survey having resolved the boundary line adversely to the claims of the Deeses, notice of appeal and security for costs were duly filed and the appeal perfected.

The appellants' brief contains nine assignments of error which are substantially argued and which we shall consider in the order in which they are argued.

The main question presented to us is whether or not the evidence supports the findings of the trial court. At the outset therefore, we must point out that the trial court, sitting without a jury in this case, heard the evidence ore tenus, and it is axiomatic in such cases that a presumption of correctness must be indulged unless to do so would result in a gross miscarriage of justice. Consequently, unless the trial court's decision is shown to be palpably wrong and unjust and contrary to the great weight of the evidence, its decision should be affirmed. Lovelace v. McMillan, 265 Ala. 290, 90 So.2d 822; Butts v. Lancaster, 279 Ala. 589, 188 So.2d 548; Talbot v. Braswell, 266 Ala. 578, 98 So.2d 7.

Appellants' first assignments of error numbered 1, 2, 6 and 9 are argued in bulk and assert the insufficiency of the evidence to support the decree of the lower court in determining the true boundary line as that surveyed by the court-appointed surveyor, Mr. Ralph McVay. The position here seems to be that since Mr. McVay's survey was not in "exact" accordance with the original Government Field Survey Notes, that it should not be used to determine the "true" boundary line in dispute between these parties. The appellants, however, offer no alternative of any kind save, we assume, to disregard the official survey and accept the testimony of their witnesses as to the use and occupation of the land in dispute over the testimony of the witnesses for the appellees. The trial court chose to accept the McVay survey as sufficiently adequate to establish the true boundary line, it having been shown that McVay, a licensed surveyor, used accepted practices and followed accepted procedure for locating the true line between the aforementioned coterminous properties.

The case of Billingsley v. Bates, 30 Ala. 376, cited by appellant to support the above assignments 1, 2, 6 and 9, supports, we think the opposite view, as the following excerpt indicates:

" * * * it is for the jury [trier of fact] to ascertain and settle at what precise point the disputed or lost corner was placed, and the disputed line marked, by the government surveyor in his original survey. And to enable the jury [trier of fact] to perform that duty intelligently, any evidence, whether parol or written, may be submitted to them, which has any natural and reasonable tendency to show where the corner was placed or that line marked in the original survey. Recourse may be had to the unobliterated marks and corners of that survey, to the fieldnotes and plat, and to subsequent surveys made under their guidance. Such subsequent surveys cannot alter or...