Golden v. Rollins

• Citation: 266 Ala. 640,98 So.2d 409
• Decision Date: 20 June 1957
• Docket Number: 6 Div. 807
• Parties: J. Latt GOLDEN v. O. D. ROLLINS and Laura B. Rollins.
• Court: Supreme Court of Alabama

Page 409

98 So.2d 409

266 Ala. 640

J. Latt GOLDEN v. O. D. ROLLINS and Laura B. Rollins.

6 Div. 807.

Supreme Court of Alabama.

June 20, 1957.

Rehearing Denied Nov. 21, 1957.

Ross, Ross & Ross, Bessemer, for appellant.

McEniry, McEniry & McEniry, Bessemer, for appellees.

COLEMAN, Justice.

This is the second appeal in this case. Golden v. Rollins, 259 Ala. 286, 66 So.2d 91. The questions decided on the former appeal are not involved here.

The appellees sued appellant in a statutory action to recover twelve acres of uniform width off the east side of southeast quarter of southeast quarter of Section 8, Township 18, Range 5, west, of the Huntsville Meridian.

After the former reversal, appellant (defendant) filed a boundary line suggestion, undertaking to describe the disputed line as claimed by him. Demurrer was sustained to appellant's first suggestion and also to his second suggestion; whereupon, he filed his third suggestion and appellees filed replication setting out the boundary line as contended for by them.

The lands of appellees lie on the east side of the southeast quarter of the southeast quarter of Section 8, supra, and the lands of the appellant lie on the west side of the southwest quarter of the southwest quarter of Section 9 of the same township and range. The disputed line, according to the respective deeds of the parties, is a part of the section line dividing the two sections, 8 and 9, above referred to.

The land in dispute as it appears from the record is a strip 29.7 feet wide from east to west, extending north from the southeast corner of Section 8, which is also the southwest corner of Section 9, for one quarter of a mile. The case was tried on the theory that one question in dispute to be decided by the jury was the location of the true line dividing said sections; and second, the issue of adverse possession of the disputed 29.7 feet wide strip.

The jury established the boundary line as contended for by the appellees, and the defendant has appealed to this court.

The transcript contains 374 pages followed by 86 assignments of error. Appellant's argument in brief does not clearly point out the errors insisted upon with all the certainty which might be desirable; but we proceed to consider the propositions which appear to merit discussion.

Appellant insists that error was committed in refusing the general charge with hypothesis requested by appellant under the theory that appellant had acquired title to the disputed strip by adverse possession. The evidence relating to possession of the disputed strip was in conflict, with substantial testimony supporting the contentions of both parties. Refusal of the general charge requested by appellant was not error.

Likewise, appellant's argument that the verdict was against the preponderance of the evidence is without merit.

Appellant argues that because certain members of the jury were employees of the Tennessee Coal, Iron and Railroad Company, these jurors were disqualified in this case and appellant is therefore entitled to a new trial. It is not shown that objection to the qualification of these jurors was made on that ground prior to the motion for a new trial. Moreover, the record fails to show that T. C. I. had any interest in the lands involved in this case, the minerals thereunder, or the result of this suit. This argument is without merit.

Appellant argues that the trial judge erred to a reversal in making certain statements during the cross-examination of Mrs. Wright, a witness for appellees, and in shaking hands with this witness in the presence of the jury immediately after a recess had been declared. We are of opinion that these actions of the trial judge did not constitute reversible error.

Appellant argues that over his objection, the witness Bennett, county surveyor, was erroneously permitted to testify as to what the original government survey showed with respect to dimensions of the sections of land here involved. In support of this insistence, appellant directs our attention to assignment of error 46 only, which recites as follows:

'46. The Trial Court erred in overruling the Appellant's objection to the following question propounded by the Appellee to the Appellee's witness, W. B. Bennett.

'Q. Now I will ask you if you had other notes of the Government relative to Section 8 and Section 9, and if you did have other notes tell the jury what those notes were that you had and used? (Transcript Page 8)'

The question objected to does not call for information which the government notes or other records might contain, but merely asked the witness to tell what notes he 'had and used.' The objection to this question was properly overruled.

Appellant's first boundary line suggestion described the disputed line as follows:

'Commencing at the northwest corner of the SE quarter of SE quarter of Section 8, Township 18, Range 5 West, run thence in an Easterly direction along the North boundary line of said forty 1320 feet, more or less, to a round 3/4 inch steel rod in the north boundary of said forty, for point of beginning, thence in a southerly direction along an old fence row to the north end of a barbed wire fence, thence in a Southerly direction along said barbed wire fence as the same now stands to a gulley at the south end of said barbed wire fence, thence continue in a southerly direction along a line marked by round 3/4 inch steel rods to the center of Warrior River Road, a public paved road, which point in said road is the end of said true line. Situated in Jefferson County, Alabama.'

This court has indicated that a description beginning at the true corner of a certain forty-acre subdivision described by government numbers is not on its face indefinite or uncertain.

'Of course, when the decree speaks of 'commencing at the Northwest corner of the SW 1/4 of SW 1/4 of said Section Eighteen,' it means, and can only mean, the true northwest corner of said forty-acre tract. Clarke v. Earnest, 224 Ala. 165, 139 So. 223. When that corner is established by a competent surveyor, as will be engaged by the sheriff, there will be no difficulty in locating and designating the strip of land. The decree in describing the tract of land is not subject to the objection of being uncertain or indefinite, as urged by appellants' counsel.' Smith v. Simmons, 228 Ala. 393, 395, 153 So. 633, 634.

In a later case, the description of a boundary line commencing at a corner of a forty-acre subdivision was said to be sufficiently certain on its face. In that case, however, the evidence showed that the corner set out in the description was, in fact in dispute, and such a discription was disapproved. We quote from the opinion:

'* * * It is described in the suggestion, to paraphrase it, as commencing at the SE corner of NE 1/4 of NE 1/4, Section 2, supra, running thence north * * *.

'* * * There seems to be some controversy about the location of the starting point, to wit: the SE corner of NE 1/4 of NE 1/4, Section 2, supra. * * *

'The description as set out in the suggestion does not indicate that there was any controversy as to the location of the corner which is the starting point. So that on its face the description as there set out is not uncertain as to the starting point. Smith v. Simmons, 228 Ala. 393, 153 So. 633. But if there is a controversy about it as where surveyors place it at different locations, it should be described in the suggestion and judgment by monuments, distances and courses and not by reference to a survey, Millican v. Mintz [260 Ala. 22, 68 So.2d 702], supra; Forrester v. McFry, 229 Ala. 324, 157 So. 68, or other extraneous facts. Hopkins v. Duggar, 204 Ala. 626(5), 87 So. 103.' Godsey v. Anglin, 261 Ala. 19, 21, 73 So.2d 92, 94.

In the instant case, it might be said that the description of the disputed line as set out in appellant's first suggestion is on its face sufficiently certain as against demurrer. The evidence does not indicate, as we understand it, any dispute as to the location of the northwest corner of the southeast quarter of the southeast quarter of said Section 8. That corner, however, is not a point on the disputed boundary line. The description indicates that from that corner the surveyor should run 1320 feet, more or less, to a steel rod, which steel rod is the point of beginning of the disputed boundary line which appellant undertook to describe.

Plaintiffs' Exhibit 1 in this case indicates that at or near this point of beginning of the line thus described, two three-quarter inch iron pins appear in the ground. One of these pins is shown to be located on the line claimed by appellant and the other three-quarter inch iron pin is shown to be on the line claimed by appellees. A three-quarter inch iron pipe is also shown by said exhibit to be located on the ground some 25 feet from the two iron pins. In this state of the record, we are unwilling to hold the trial court in error for sustaining the demurrer to appellant's boundary line suggestion No. 1. If this suggestion had been permitted to go to the jury, and the jury found in favor of the appellant, a verdict and judgment describing the line as set out in that suggestion would be infected with the vice of uncertainty and indefiniteness because the surveyor or sheriff who undertook to mark the disputed line on the ground in accordance with that description would be faced with a choice between the three iron markers above referred to and would not be guided by the decree with sufficient certainty so as to determine the correct line on the land. In that situation, the judgment would be vague, indefinite and uncertain, and would render all these proceedings abortive and useless. There was no error in sustaining demurrer to appellant's suggestion No. 1.

Appellant's suggestion No. 2 also falls short of the certainty required in describing a boundary line.

As to a further proposition argued by appellant, however, we are of opinion that the trial...