PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AS TO ITS AMENDED COMPLAINT
This issue of law raised herein is whether the Public Surveyor's Book establishing the "Krause Lagoon" in the year 1900 to be the area as designated via Folios 120, 116, 118, 51, 50 and 123 is conculsive per se upon the Court and hence irrebuttable. Plaintiff argues that to permit reviews of land designations of long standing as made by the public official so charged to make in his official capacity would place every purchaser of land at his peril unless he were to trace the title back to its origin.
In the case Golden v. Rollins et al. (1957) 266 Ala. 640, 98 So.2d 409 which involved a boundary dispute, the Court said:
"Our cases adopt the rule that a survey and a map based thereon are admissible in evidence where the county surveyor who made the survey and the map is shown to be qualified and is personally present in court, subject to cross-examination by the opposite party, and testifies as to the correctness of his map.
`A plat or map of lands surveyed by a county surveyor is not self-proving, or evidence per se, unless made upon notice to the parties, signed officially, and showing the matters prescribed by statute. Code 1923, § 10352. But the surveyor, shown to have experience as such, may testify as a witness to his survey, and its correctness, whereupon the plat may be offered in evidence in connection with his testimony. * *' Hill v. Johnson, 214 Ala. 194, 196, 106 So. 814, 815.
Plats of land made by a county surveyor without notice to the party against whom the plat was offered in evidence, have been held admissible in evidence for certain purposes, where the surveyor was personally present in court, testifying, and available for cross-examination. Hess v. Rudder, 117 Ala. 525, 23 So. 136; Vandiver v. Vandiver, 115 Ala. 328, 22 So. 154.
As to an ex parte survey made without notice as provided by statute to the objecting party, or his privies, the rule is different when the surveyor is not personally present for cross-examination. The rule has been stated as follows:
`* * * Generally, private or statutory surveys are not admissible against one who, or whose privies, took no part therein, or had no notice thereof; * * *.' 11 C.J.S. Boundaries § 114,
Note 20; 9 C.J., page 284, Note 63. `The objection, however, is, (as we understand it,) that the survey being exparte, and not made in pursuance of an order of court, is not evidence. But the county surveyor is required by law to survey any land lying in his county, at the request of the owner. Clay's Dig. 353. And although such survey may not within itself be evidence, yet that the surveyor may be examined to prove the boundaries, and that he may illustrate his evidence by the survey so made, we entertain no doubt; and when the surveyor, by his own testimony, has proved the accuracy of his survey, it then may go to the jury as testimony tending to prove the locality of the land and its boundaries. * *' Nolin v. Parmer, 21 Ala. 66, 70, 71."
Hoffman et al. v. VanDuzee et al. (1937) 19 Cal.App.2d 517, 65 P.2d 1330 involved a dispute over lot boundaries in which the lots were conveyed by reference to a recorded map. The Court decided that the recorded map was correct. In so deciding, the Court stated as follows:
"* * * Plaintiffs contend, and the court found, that the recorded map was correct and that no such excess existed in the block.
It is evident that the whole case turns upon a question of fact. * * *"
"* * * The question which the court had to decide was the width of the block in 1906, at the time the land was surveyed and platted into lots. The court assumed, to start with, that the map was correct; this was a proper assumption. O'Farrell v. Harney, 51 Cal. 125. When defendant Clara R. Hubbs conveyed plaintiffs' lot three by reference to the recorded map, the map thereby became a part of the conveyance so far as the location of plaintiffs' lot was concerned. * * *"
"* * * Dimensions shown on recorded maps used and referred to in conveyances for the purpose of description express the understandings and agreements of the parties with reference to the locations and boundaries of the land conveyed. They are to be taken as correct until shown by clear proof to be in error. * * *"
"* * * Further surveys may prove that the length of the block is greater than that shown on the map. If such excess exists and it is found to be due to an error in the original survey, a question would immediately arise as to the proper allocation of this excess. * * *"
Walker et al. v. Town of Fruithurst (1961) 272 Ala. 141, 130 So.2d 12 was a statutory action of ejectment. In its decision the Court said as follows:
"* * * As to Exhibit 2, Mr. Hoyt Moore, the Tax Assessor of Cleburne County, Alabama, testified, in substance, as follows: That he began his duties as such tax assessor October 1, 1956. He identified said Exhibit 2 as being page 6 of a plat book designated as Plat Book No. 3, being one of the plat books in the tax assessor's office when he assumed office as such tax assessor. He testified that said tax book 3 purported to be the plat book of the years around 1900.
In our opinion, the trial court could properly determine from the evidence before it that this map was an ancient document and admissible, and that, therefore, the court did not err in admitting said map into evidence. See also, Sec. 393, Title 7, Code 1940."
In the case of Brown et al. v. Metcalf (1913) 215 Mass. 289, 102 N.E. 413, a dispute existed over the western boundary line of petitioner's land and thereby involved an inquiry into the location of the Pierce and Russell marshes and the sedge island. The question on appeal arose as to the allowed introduction of the "Fuller plan". The Court said:
"* * * The main controversy was as to the location of the westerly boundary line of the petitioners' land. That involved an inquiry into the location of the Pierce and Russell marshes and the sedge island with reference to the tract of land covered by the petition, and the case necessitated a determination of the location on the ground of lines established more than a century ago across marshes and flats on the Mystic river which, as early as 1850, had been so changed by excavation that the original landmarks had to a considerable extent disappeared. Such an inquiry under such circumstances would be likely to be attended with considerable difficulty; and such seems actually to have been the case.
The case is before us upon a report of the land court, and the only question is whether a certain ancient plan called the `Fuller plan' was wrongly admitted at the trial. After stating the evidence as to the plan, the report states that the plan was admitted at first de bene and continues as follows:
`At the conclusion of the arguments I took the papers and reserved decision, and thereafter made a careful study of all the plans and records offered, including the plan or sketch in question. I found the latter to be a substantially accurate representation of the creeks, marsh and other topographical features of the tract in dispute, as it then existed, to such a degree that its lines can be substantially identified upon the ground to-day. I then transmitted to the recorder's office a decision, which was filed * * *.'"
"* * * We understand that the finding that the plan `used by or on behalf of Dalrymple, although not in any transaction to which the respondent, or predecessors, of his in title was a party, as showing the land then claimed by him,' to be a finding that in some transaction to which Dalrymple was a party, or in which he was interested, this plan was used as showing the land then claimed by him. It is not a case where the plan simply has been kept undisclosed, but where it has been produced and used in connection with some transaction.
Under these findings the plan was properly admitted. * * *"
In Plattsmouth Bridge Co. v. Globe Oil & Refining Co. (1943) 232 Iowa 1118, 7 N.W.2d 409, the Court stated:
"* * * The theory of the plaintiff was that the particular tract involved herein is accretion land which was conveyed by the deeds and title thereto was quieted by the decree aforesaid. The theory of the defendant was that the strip was not accretion land therefore the deeds and the quiet title action did not affect the title thereto. * *"
"* * * The strip in question would not be subject to taxation unless it were accretion land. The statute authorized the survey and the facts shown by the plat were required by the survey. Since the taxing body represents the state, under Section 5486, Code 1939, the plat is presumptive evidence that the strip of land is private property and not publicly owned. It was properly identified, is more than 30 years old, and was competent as an ancient document. Bidwell v. McCuen, 183 Iowa 633, 640, N.W. 369; Bergman v. Carson, 226 Iowa 449, 452, 284 N.W. 442; McKee v. Pennsylvania R. Co., 255 Pa. 560, 100 A. 454. As opposed to this plat, defendant produced two witnesses who were of the opinion that the strip was original ground and the
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