Haywood v. Hollingsworth, 7 Div. 47

• Citation: 51 So.2d 674,255 Ala. 453
• Decision Date: 08 March 1951
• Docket Number: 7 Div. 47
• Parties: HAYWOOD et al. v. HOLLINGSWORTH et al.
• Court: Supreme Court of Alabama

Page 674

51 So.2d 674

255 Ala. 453

HAYWOOD et al. v. HOLLINGSWORTH et al.

7 Div. 47.

Supreme Court of Alabama.

March 8, 1951.

Rehearing Denied April 19, 1951.

Chas. Thomason, of Anniston, for appellants.

Knox, Jones, Woolf & Merrill, of Anniston, for appellees.

BROWN, Justice.

This appeal is from the final decree of the circuit court, in equity, fixing a disputed land line between the properties of coterminous proprietors, who as the undisputed evidence shows, each own a lot in the Griffishurst Subdivision to the City of Anniston, situated just west of said city in Calhoun County, Alabama.

The bill filed by appellees seeking such relief alleges,

'Complainants own the following described property, to-wit: Lot 2, in Block A, as shown on the map of Griffishurst, just west of the City of Anniston, in Calhoun County, Alabama. Respondents own the following described property, to-wit: Lot 1, in Block A, as shown on the map of Griffishurst, just west of the City of Anniston, in Calhoun County, Alabama.

'Complainants and Respondents are coterminous owners, complainants' lot lying adjacent to and immediately west of respondents' said lot, both of which front on the south side of Tenth Street and extend southward to an alley, as shown on the map of Griffishurst Subdivision. The east boundary line of complainants' said lot is the same as the west boundary line of respondents' said lot.

'Complainants aver that the location of said boundary line between said lots is disputed by said owners and complainants desire to have the same established and determined by this Court.'

The bill further avers, in short, that 'more than ten years ago the boundary line above referred to was established and agreed upon between the then owners of said respective lots, who were the predecessors in title of the present owners, and a fence was erected on said dividing line which separated said lots; that both of said parties acquiesced in the construction of said fence and for more than twenty years recognized the same as the boundary line between said lots and treated the same as such, each party having actual possession of his respective lot up to said fence.'

'Complainants aver that the true boundary line between said lots is the line upon which the original fence was erected and the same is well marked by postholes where the fence posts constituting a part of said fence stood, and that the same runs four feet nine inches east of and approximately parallel to the new fence that has been erected by the respondents.'

The bill prays inter alia that 'The Court will determine and establish the true boundary line between the said lots of said parties and that the Court will adjudicate that the true boundary line is the line upon which the original fence separating said lots was located, and complainants further pray that the Court will enjoin respondents from maintaining the fence that they have recently erected upon complainants' property, and will require him to remove the same and to reestablish said original fence, and that the boundary line between said lots will be clearly established and marked under the supervision of the Court,' and for general relief.

After demurrer overruled the defendants answered, admitting that said lots 'lie adjacent to or parallel with one another and that they front on the south side of Tenth Street, and extend southward to an alley, as shown on the map of Griffishurst Subdivision,' 'that the East boundary line of complainants' said lot is the same as the west boundary line of respondents' said lot'; and that the 'boundary line between the above named and identified lots is in dispute.'

The respondents deny that 'more than twenty years ago the boundary line above referred to was established and agreed upon between the then owners of said respective lots.' Further respondents deny that a fence was erected on said dividing line by them and acquiesced in by them for more than twenty years, or at all. The respondents 'emphatically deny and specifically deny that for more than twenty years last past the complainants or their predecessors in title claimed to own the land west of the old fence, that the predecessors in title and the complainants never actually used the land right up to the fence.'

The respondents in their answer deny that the true boundary line between said lots is the line upon which the original fence was erected.

On submission on the pleadings and proof noted by the register, consisting of documentary evidence, testimony taken by depositions and testimony taken ore tenus, the court entered a final decree as follows:

'It is accordingly ordered, adjudged and decreed by the Court that the boundary line between the lots of complainants and respondents, * * * is hereby determined to be and established by the Court as follows, to-wit:

'Beginning at a point on the south line of Jefferson Street 47 feet 3 inches west of an iron marker established by A. J. Saks, Surveyor, at the southwest corner of Jefferson Street and First Avenue, which point is 4 feet 9 inches east of an iron marker established by A. J. Saks, Surveyor, purporting to mark the dividing line between the said Lots 1 and 2, Block A, Griffishurst, and is the point where the existing fence erected by respondent H. L. Haywood referred to in the bill of complaint intersects the south line of Jefferson Street. From said beginning point said boundary line extends southward following the old fence row where the fence erected by W. P. Pointer i...