Ferguson v. Shipp
| Decision Date | 07 December 1916 |
| Docket Number | 8 Div. 845 |
| Citation | 73 So. 414,198 Ala. 87 |
| Parties | FERGUSON v. SHIPP. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jackson County; W.W. Haralson, Judge.
Ejectment by C.W. Shipp against R.L. Ferguson. Judgment for plaintiff and defendant appeals. Reversed and remanded.
Bouldin & Wimberly, of Scottsboro, for appellant.
John B Tally, of Scottsboro, for appellee.
Shipp (appellee) instituted his action of statutory ejectment against Ferguson (appellant) to recover a plat of land in Jackson county. The defendant disclaimed possession of the land sued for, and suggested that the controversy arose over a disputed boundary line. Code, § 3843. This statute has been considered and interpreted in the following decisions Wade v. Gilmer, 186 Ala. 524, 64 So. 611; Oliver v. Oliver, 187 Ala. 340, 65 So. 373; Smith v Bachus, 70 So. 261; Jeffreys v. Jeffreys, 183 Ala. 617, 62 So. 797; Howard v. Martin, 181 Ala. 613, 62 So. 99; Doe ex dem. v. Goetchius, 180 Ala. 381, 387, 61 So. 330; Roden v. Capehart, 70 So. 756, last paragraph at bottom of page 758.
If we correctly interpret the evidence in this bill of exceptions, there would seem to be some doubt whether the primary dispute is not one of title, rather than of disputed boundary; the source of the fundamental differences between the parties litigant being suggested by this inquiry: What two acres (approximately) of land was described in the deeds on which the defendant relies for his rights in the premises? Roden v. Capehart, supra. We moot this question in view of the retrial anticipated, to which we are constrained, by unavoidable pronouncement of prejudicial error, to remand the cause.
The report of the appeal will contain special charges numbered 2 and 3, given at plaintiff's (appellee's) request. In the former (2) the court advised the jury that "the survey is presumed to be correct." The evidence, as reproduced for consideration here, makes no reference to a survey by a county surveyor within the purview of Code, § 6023. It is not made to appear that the county surveyor or surveyors reduced their work to a plat or memorial of any kind or signed any such memorial officially, so as to invoke the statute's (section 6023) effect to make it "presumptive evidence of the facts stated." The county surveyors were competent expert witnesses in the premises; but they were expert witnesses only, their testimony being unaided by any presumption. Bridges v McClendon, 56 Ala. 327, 335; Hess v. Rudder, 117 Ala. 525, 533, 23 So. 136, 67 Am.St.Rep. 182; Vandiver v. Vandiver, 115 Ala. 328, 333, 22 So. 154. This instruction (2) invaded the jury's province by affirming that a presumption of correctness attended the result of the work there done by the county surveyors. The location of at least some of the monuments, so to speak, mentioned in the deeds introduced in evidence by the defendant depended, at this late day, upon parol evidence; the weight and credibility to be accorded that character of evidence offered on the trial being matters for the jury to decide. It cannot be...
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Shipp v. Ferguson
...plaintiff and defendant, and invoked section 3843 of the Code to determine and establish this disputed line. See report of the case, 73 So. 414. the former appeal it was suggested, but not decided, that there was probably a dispute of title otherwise than through the question of boundary li......