Irwin Fishing & Hunting Club v. Cobb

• Decision Date: 27 January 1938
• Docket Number: 5 Div. 266
• Citation: 179 So. 183,235 Ala. 394
• Parties: IRWIN FISHING & HUNTING CLUB v. COBB.
• Court: Alabama Supreme Court

179 So. 183

235 Ala. 394

IRWIN FISHING & HUNTING CLUB v. COBB.

5 Div. 266

Supreme Court of Alabama

January 27, 1938

Rehearing Denied Feb. 24, 1938

Appeal from Circuit Court, Elmore County; Arthur Glover, Judge.

Suit in equity by Irwin Fishing & Hunting Club against Henry C. Cobb for the settlement of a boundary dispute. From a decree dissolving a temporary injunction, the complainant appeals.

Reversed and rendered.

Holley & Milner, of Wetumpka, and C.H. Roquemore, of Montgomery, for appellant.

Huddleston Jones & Graff, of Wetumpka, for appellee.

FOSTER Justice.

This is a suit in equity filed by appellant, and seeks to have a disputed boundary settled. The controversy relates to the location of the west boundary line of what is known as Whetstone Lake, owned by complainant, as it is described in a deed to it, and the controversy seems to be controlled by the meaning of the "western bank" of said lake, as used in the deed. The controversy is over a strip of land varying in width from 75 to 200 feet, and extending from the edge of deep water to an embankment 6 to 10 feet high. This flat is often covered with water, and is said to have a growth of water grass and trees. Sometimes this land is dry.

Appellant contends that the western bank extends to the embankment referred to, and appellee contends that the western bank of the lake only extends to the edge of deep water, or the bank of the channel, which the deep water habitually covers.

The lake is formed by Hall's Mill creek entering at the north, and it curves towards the west with an outlet for the waters of the creek at the western end. It is said to be apparently the location of an ancient river.

The lake and grounds are used by appellant as a recreation location for fishing and hunting, and the trees, whose cutting is sought to be enjoined, are situated on the disputed territory; and are alleged to be valuable not only for timber but for ornamentation and as shade trees, and that their loss would cause irreparable damage.

Appellee owns the land to the west. He filed a sworn answer admitting the ownership by appellant of the lake extending to the western bank, which he claims was at or near the deep water edge.

The bill prayed for a decree fixing the boundary between their lands, and for a temporary injunction restraining respondent from cutting or removing any timber on said disputed territory. A temporary injunction was issued before answer filed. Thereupon respondent answered under oath, in which it was not denied that there was then a dispute about said boundary line, and in it he claimed to the edge of the deep water.

Respondent then moved to dissolve the injunction for want of equity in the bill and on the facts alleged in the answer. That motion was heard on evidence consisting of many affidavits, maps documents, and pleadings, and on a personal inspection of the premises by the judge. He dissolved the injunction, and this appeal is from that decree.

It will be observed that the injunction issued is for the purpose of preserving a status until the disputed question is settled.

The bill has equity to settle a disputed boundary line. It is immaterial to the right to invoke such equitable power what acts of ownership have been done by the respective parties or that it may be a substitute for an action at law to settle the ownership of the strip. Yauger v. Taylor, 218 Ala. 235, 118 So. 271.

Many affidavits were submitted by both parties, each claiming that they sustain their respective contentions as to what was meant by the western bank of the lake. But that is the ultimate question to be decided. It should not be decided on a preliminary issue, on ex parte affidavits and...