Goodman v. Carroll

• Decision Date: 10 February 1921
• Docket Number: 4 Div. 896
• Parties: GOODMAN v. CARROLL et al.
• Court: Alabama Supreme Court

87 So. 368

205 Ala. 305

GOODMAN v. CARROLL et al.

4 Div. 896

Supreme Court of Alabama

February 10, 1921

Appeal from Circuit Court, Coffee County; A.B. Foster, Judge.

Bill by F.E. Carroll and others against Mattie Goodman to fix and locate a disputed boundary line. From a decree overruling demurrers to the bill, respondent appeals. Reversed and remanded.

W.W Sanders, of Elba, for appellant.

J.A Carnley, of Elba, for appellees.

McCLELLAN J.

Subdivision 5 of Code 1907, § 3052, reads:

"The powers and jurisdiction of courts of chancery extend-- *** 5. To establish and define uncertain or disputed boundary lines."

This subdivision is new to the Code of 1907. At the time this Code was adopted it had been pronounced, upon abundant authority in Ashurst v. McKenzie, 92 Ala. 484, 487, 9 So. 262 and reiterated in Guice v. Barr, 130 Ala. 570, 30 So. 563, that the jurisdiction of chancery "to establish disputed boundaries is [was] ancient and well defined," that this jurisdiction did "not arise upon any mere dispute as to the location of the boundary between adjacent parcels of land, or even upon a mere dispute as to such location of a confused or obliterated line," and that in order to justify interposition by a court of equity "there must in addition to all this be some special ground of equitable interposition" (italics supplied), illustrating some of the special grounds that would serve the purpose of invoking this ancient and well-defined jurisdiction to establish boundaries.

Such was the definition of this phase of equity's powers when subdivision 5 of section 3052 of the Code of 1907 was incorporated in the body of our statutory laws; the Legislature phrasing the subdivision in practically the exact terms in which this ancient jurisdiction of equity had been expressed or defined. The principles of equity were and are, unless changed by statute or unsuited to our institutions, a part of the common law. Pennock's Estate, 20 Pa. 268, 59 Am.Dec. 718; 12 C.J. pp. 183, 188-192, inclusive.

Code 1907, § 12--its provisions becoming for the first time a part of our statutory system coincidentally with the adoption of the provisions of subdivision 5 of section 3052--provides:

"The common law of England, so far as it is not inconsistent with the Constitution, laws, and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the Legislature."

Among the accepted rules of statutory construction, here as well as generally elsewhere, are these:

The presumption is that "the Legislature does not intend to make any alteration in the law beyond what it explicitly declares, either in express terms or by unmistakable implication; *** that it is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness. *** " Cloverdale Homes v. Town of Cloverdale, 182 Ala. 419, 431, 62 So. 712, 715 (47 L.R.A.[ N.S.] 607, quoting Endlich, § 113; 36 Cyc. p. 1145).

Statute which only affirms the common law is to be accorded the meaning and effect given the like rule by the common law. Baker v. Baker, 13 Cal. 87, 95, Field, J., writing; Cumberland Tel. Co. v. Kelly, 87 C.C.A. 268, 160 F. 316, 15 Ann.Cas. 1210, Lurton, J., writing.

It appears from the simple terms in which subdivision 5 of section 3052 defines the jurisdiction there contemplated--a jurisdiction ancient and well understood when the statute was adopted--the Legislature did not express or otherwise indicate any intent to modify, contract, or expand the measure of the ancient jurisdiction under treatment in the subdivision, unless that intent is to be implied from the fact that the Legislature did not include the ancient definitive limitations thereon that are stated in Ashurst v. McKenzie, 92 Ala. 484, 487, 9 So. 262, and in the authorities therein cited. The deserved application to the statute of the rules of construction of statutes above alluded to precludes any other conclusion than that the subdivision (5) was only intended to affirm, in that positive form, the ancient jurisdiction of courts of equity as that jurisdiction had been defined in this court in Ashurst v. McKenzie, supra, and elsewhere generally.

Since it is ever presumed that the Legislature does not intend to cast an enactment into conflict with fundamental principles particularly those established in the paramount form of constitutional guaranties, mandates, or prohibitions, the constitutional protection and preservation of the right of trial by jury (Const. 1901, § 11) requires a construction--entirely permissible without deflecting from or...