Jenkins v. Raulston
| Decision Date | 18 March 1926 |
| Docket Number | 8 Div. 800 |
| Citation | 108 So. 47,214 Ala. 443 |
| Parties | JENKINS et al. v. RAULSTON. |
| Court | Alabama Supreme Court |
Rehearing Denied April 22, 1926
Appeal from Circuit Court, Jackson County; W.W. Haralson, Judge.
Bill in equity by D.T. Crownover and Elizabeth Raulston against J.M Jenkins and others. From a decree for complainant, Raulston Crownover having died, respondents appeal. Affirmed in part reversed in part, and remanded.
Ernest Parks, of Scottsboro, for appellants.
D.P Wimberly and John F. Proctor, both of Scottsboro, for appellee.
This case having been submitted under rule 46, the opinion of the court was delivered by Mr. Justice MILLER.
This is a bill in equity filed by D.T. Crownover and his daughter Elizabeth Raulston, against J.M. Jenkins and others, heirs at law of Paulina E.T. Jenkins, deceased, seeking relief in two aspects: First, to settle a disputed boundary line between the adjoining lands of complainants and the respondent; and, second, seeking an estoppel against respondents as to the location of the boundary line between their respective lands. This appeal is by respondents from the final decree in the cause in favor of complainants.
The court overruled demurrers to the bill as to its seeking to establish the disputed boundary line, and sustained demurrers to the bill as to its seeking an estoppel against respondents as to the location of this boundary line.
Prior to the amendment of subdivision 5 of section 3052, Code of 1907 (Acts 1923, p. 764), the court had jurisdiction to establish disputed boundary lines, but the bill had to aver some facts showing right to equitable relief in order to give equity to the bill. Ashurst v. McKenzie, 9 So. 262, 92 Ala. 484; Jasper v. Eddins, 94 So. 516, 208 Ala. 431. This bill in that aspect was drawn to meet those decisions, and was not subject to the demurrers of the respondents. Since the Act of 1923, p. 764, approved October 1, 1923, this subdivision 5 of section 3052, Code 1907 (now section 6465, Code of 1923), reads: The circuit court in equity matters has jurisdiction: These words, "whether the bill contains an independent equity or not," were added by this act. This bill was filed February 12, 1924, and the decree on the demurrer was rendered on May 1, 1924, after this amendment by the act was written in this section; and it was unnecessary for this bill to allege some facts showing an independent equity. Acts 1923, p. 764, § 1; section 6465, Code of 1923.
But the respondents insist this act of 1923, amending section 3052 of the Code of 1907, is unconstitutional, that it violates section 11 of the Constitution of 1901, which declares that the right of trial by jury shall remain inviolate. This act does not contravene that section of the Constitution. The right to establish and define uncertain or disputed boundary lines belongs to a court of equity. This amendment to the statute does not enlarge the jurisdiction of the court of equity on the subject, but simply does not require an averment of facts in the bill showing an independent equity to render the bill of complaint free from objection by demurrer. Turner v. De Priest, 87 So. 370, 205 Ala. 313; Goodman v. Carroll, 87 So. 368, 205 Ala. 305, and authorities supra.
Since this decree on this demurrer was rendered, and since the answer and plea were filed, sections 6439, 6440, and 6441 appear in the Code of 1923. They are new statutes therein, and they are on the subject of boundaries and proceedings to determine them between adjoining landowners. The Code of 1923 containing them went into effect on August 17, 1924. The pleadings in this cause, as to the six acres of land hereinafter mentioned, were concluded before the Code of 1923, containing these new sections, became operative, and they are not before us for consideration.
The bill was amended by complainants as to that part setting up an estoppel against the respondents as to the location of the boundary line between them, and the respondents demurred again to the bill as thus amended. There is no decree of the court on these demurrers, and there is nothing further for us to review on that phase of the bill.
The respondents answered the bill, denying the boundary line claimed by the complainants was the true line, and stated where they claimed the line between their lands was located, and denied the facts setting up the estoppel.
The trial court properly held and decreed from the pleading and proof that the complainants were not entitled to relief sought on account of estoppel, but that complainants were entitled to relief in that part of the bill seeking to have the boundary line established, and the court so decreed.
It is obvious from the pleading, the testimony of the witnesses, the muniments of title, and the numerous and various maps introduced in evidence that the complainants and the respondents are adjoining landowners, and the boundary lines between their lands are uncertain and in dispute. So the court correctly decreed that complainants were entitled to have established and defined the boundary lines between their lands. Again the court was correct when it stated in substance that, in the confusion and uncertainty of the testimony and the maps in evidence, the court could not correctly establish and fix this boundary line without the aid of commissioners, and the only and best way to finally fix the boundary line between the parties was to appoint disinterested commissioners to go upon the land with surveyors as they may choose and ascertain, fix and mark the line as shown by the pleadings, muniments of title, etc., and to make written report of their findings and acts to the court for confirmation or rejection, after the parties had time to file exceptions to their report. The court by decree so ordered. In making this part of the decree as to appointment of the commissioners and their authority, the court was well within its powers and authority, and did not err therein.
In Ashurst v. McKenzie, 9 So. 263, 92 Ala. 489, this court, in discussing this subject, wrote:
"Chancery jurisdiction to establish disputed boundaries is effectuated through a commission appointed to go upon the land and ascertain, fix and mark the true line, or being unable to determine and rehabilitate the real boundary to establish a line between the adjacent proprietors...
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