Howard v. Brannan, 808

CourtSupreme Court of Alabama
Writing for the CourtANDERSON, C.J.
Citation66 So. 433,188 Ala. 532
PartiesHOWARD v. BRANNAN.
Docket Number808
Decision Date07 November 1914

66 So. 433

188 Ala. 532

HOWARD
v.
BRANNAN.

No. 808

Supreme Court of Alabama

November 7, 1914


Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Ejectment by Thos. J. Brannan against E.I. Howard. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The following is charge 1 referred to in the opinion:

The court charges the jury that if they are reasonably satisfied by the evidence that the owners of the land on both sides of the Maples' line have recognized such line as the true line dividing section 17 from section 18, and have held and used up to such line for more than ten years continuously and adversely up to the time defendant bought his land, then you must find the issues for the plaintiff

Rich & Hamilton, of Mobile, for appellant.

Ervin & McAleer, of Mobile, for appellee.

ANDERSON, C.J.

This was the statutory action of ejectment for the recovery of the S. 1/2 of the S.W. 1/4 of section 17, township 1 north of range 3 west, in Mobile county.

The defendant filed a disclaimer, which meant that he did not claim any land sued for by the plaintiff, and set up, under the terms of section 3843 of the Code of 1907, that the dispute arose over a disputed boundary as to the line separating sections 17 and 18. The plaintiff then averred that the true boundary between said sections was as set out by him. The defendant took issue on this, and also averred that the true boundary line between sections 17 and 18 was as set out by him, and which differed from the line set up by the plaintiff.

Therefore the one and only issue was the location of the true line, as per the government survey, between sections 17 and 18, and not of some other line that may have been fixed by adverse possession or by the respective owners. When the true line was established between these sections by the government survey, it was the only line separating the one from the other; and while the act of the parties, as to encroaching upon either side, may have ripened into title, yet it could not transfer land from one of said sections to the other. If the plaintiff claimed land beyond the line, it should have been set out as being a part of section 18; and, if the defendant claimed that he owned land beyond the proper line, he should not have disclaimed ownership or possession as to the land sued for by the plaintiff. In other words, the issue made up between the parties was not whether or not the plaintiff...

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6 practice notes
  • Yauger v. Taylor, 2 Div. 916
    • United States
    • Supreme Court of Alabama
    • May 24, 1928
    ...true boundary to be adjudicated and marked. Some difficulty under that statute was pointed out by Anderson, C.J., in Howard v. Brannan, 188 Ala. 532, 66 So. 433. A further amendment appears in the Code of 1923, § 7457. Is this not a legislative recognition upon judicial suggestion that the ......
  • Roden v. Capehart, 8 Div. 804
    • United States
    • Supreme Court of Alabama
    • December 16, 1915
    ...possession. Code 1907, § 3843; Wade v. Gilmer, 186 Ala. 524, 64 So. 611; Oliver v. Oliver, 187 Ala. 340, 65 So. 373; Howard v. Brannon, 188 Ala. 532, 66 So. 433. We may say, for the purpose of another trial, that under the facts disclosed by the record, the question should have been present......
  • Thomas v. Carter, 7 Div. 710
    • United States
    • Supreme Court of Alabama
    • November 10, 1927
    ...Pratt Consolidated Coal Co. v. Davidson, 173 Ala. 667, 55 So. 886; Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754; Howard v. Brannan, 188 Ala. 532, 66 So. 433. Upon a reconsideration, a majority of the court has reached the conclusion that the giving of said charge for the plaintiff ju......
  • Mintz v. Millican, 7 Div. 869.
    • United States
    • Supreme Court of Alabama
    • October 10, 1946
    ...here reached. [248 Ala. 686] Appellee insists that the cases of Wade v. Gilmer, 186 Ala. 524, 64 So. 611, and Howard v. Brannan, 188 Ala. 532, 66 So. 433, are here controlling. With this contention we cannot agree. In both of those cases the sole issue as raised by the pleadings was the loc......
  • Request a trial to view additional results
6 cases
  • Yauger v. Taylor, 2 Div. 916
    • United States
    • Supreme Court of Alabama
    • May 24, 1928
    ...true boundary to be adjudicated and marked. Some difficulty under that statute was pointed out by Anderson, C.J., in Howard v. Brannan, 188 Ala. 532, 66 So. 433. A further amendment appears in the Code of 1923, § 7457. Is this not a legislative recognition upon judicial suggestion that the ......
  • Roden v. Capehart, 8 Div. 804
    • United States
    • Supreme Court of Alabama
    • December 16, 1915
    ...possession. Code 1907, § 3843; Wade v. Gilmer, 186 Ala. 524, 64 So. 611; Oliver v. Oliver, 187 Ala. 340, 65 So. 373; Howard v. Brannon, 188 Ala. 532, 66 So. 433. We may say, for the purpose of another trial, that under the facts disclosed by the record, the question should have been present......
  • Thomas v. Carter, 7 Div. 710
    • United States
    • Supreme Court of Alabama
    • November 10, 1927
    ...Pratt Consolidated Coal Co. v. Davidson, 173 Ala. 667, 55 So. 886; Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754; Howard v. Brannan, 188 Ala. 532, 66 So. 433. Upon a reconsideration, a majority of the court has reached the conclusion that the giving of said charge for the plaintiff ju......
  • Mintz v. Millican, 7 Div. 869.
    • United States
    • Supreme Court of Alabama
    • October 10, 1946
    ...here reached. [248 Ala. 686] Appellee insists that the cases of Wade v. Gilmer, 186 Ala. 524, 64 So. 611, and Howard v. Brannan, 188 Ala. 532, 66 So. 433, are here controlling. With this contention we cannot agree. In both of those cases the sole issue as raised by the pleadings was the loc......
  • Request a trial to view additional results

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