Jones v. Wise
| Decision Date | 15 August 1968 |
| Docket Number | 4 Div. 279 |
| Parties | Reba P. JONES et al. v. Joe WISE et al. |
| Court | Alabama Supreme Court |
Thad G. Long and Bradley, Arant, Rose & White, Birmingham, for appellants.
W. G. Hardwick and Jere C. Segrest, Dothan, for appellees.
This case was originally assigned to another member of the court and was reassigned to the author of this opinion on July 29, 1968.
This appeal is from a decree setting the boundary line between the parties. The bill was filed by appellees (Wise) and both they and the appellants (Jones) agreed that they were coterminous owners, the line was disputed and requested that the court determine the matter under its authority pursuant to Tit. 13, § 129 and Tit. 47, § 3, Code 1940. The disputed strip is cone-shaped and about twelve feet across at its widest point.
Both lots originally came from a common source of title, G. W. Smith, who received a deed to:
'One lot in Dothan, bounded on South by J. J. Patterson's lot, on East by Lena Street, on North by next (evidently Adams) Street and on the West by Alice Street, said lot being a part of the NW 1/4 of NW 1/4 of Section 24, Township 3, Range 26, containing 2 acres, more or less.'
The Jones property lies north of the Wise property. The Jones deed showed their lot to be bounded on the south by the lot of J. E. Wise (appellee). The Wise deed showed their lot was bounded on north by the 'lot of N. B. Crawford.' Crawford sold to Pilcher, and Pilcher sold to appellants, both deeds making the south boundary the J. E. Wise lot.
Appellants argue first some ten related assignments of error which, according to appellants, charge in effect that the trial court erred in 'admitting into evidence, considering and materially relying on the testimony of a surveyor as to the location of the true boundary line.'
The surveyor, Claude Bence, had had eighteen years experience as a land surveyor, was licensed in Alabama, Georgia and Florida, had taken courses with reference to surveying from both the University of Alabama and Auburn University, and his qualifications as an expert were not questioned at the trial.
Bence testified that he had made a previous survey for appellees before the controversy arose between them and appellants; that he had deeds to both parties' lots; that he talked with the husband of one of the appellants and one of the appellees; that he was unable to establish the boundary line from the examination of the deeds furnished to him or an examination of copies of deeds he found in the courthouse, in that the descriptions contained in said deeds merely stated that one property was bounded by the property of the other and the other property was bounded by the property of the former with no distances or courses being given; that he found existing landmarks which consisted of a fence, an old hedgerow, both of which seemed to have been in existence for a great number of years; that a wooden lattice fence ran from the corner of a barn or out-building; that west of said barn a block wall and fence existed and further west of the block wall a fence and hedgerow existed, and that all the fences, walls, building extremities and hedgerow constituted a straight line which when projected toward Lena Street directly intersected a pecan tree and a slight swale or depression in the land surface resembling a valley. Based on these factors, he stated that in his judgment and opinion as a land surveyor, this constituted the true boundary line between the lands of the appellants and the appellees.
Plats of both of Bence's surveys were admitted into evidence. He was the only surveyor who did testify and the record shows that prior to the submission of the cause to the trial court, counsel for appellees stated to the court:
* * *'
This was not denied by counsel for appellants. Bence's was the only testimony and actually was the only evidence that stated the exact position of the boundary line.
Appellants argue that the surveys made by Bence were not in accordance with Tit. 56, § 7, Code 1940, and were not prima facie evidence of the correctness of the matters on the plats, including the boundary line. With this we agree, but we are unable to find anything in the record or the decree of the trial court which treats the plats or Bence's testimony as anything more than evidence in the case.
A surveyor, shown to have experience as such, may testify as a witness to his survey and its correctness, whereupon the plat or map may be admitted in evidence in connection with his testimony. Calvert v. Bynum,255 Ala. 172, 50 So.2d 731; Hill v. Johnson, 214 Ala. 194, 106 So. 814.
A surveyor of long experience may sometimes give his opinion as an expert that a line he has surveyed is the true line. Lay v. Phillips, 276 Ala. 273, 161 So.2d 477.
We find no reversible error in the rulings of the trial court made the subject of the ten assignments of error 7--11, 13--15, 18 and 19.
Assignments of error 5 and 6 charge in effect that the court erred 'in failing to construe relevant descriptions from deeds and in failing to find the true boundary line in accordance with such descriptions.'
It is sufficient to say that we cannot agree with appellants on these points. We think both the surveyor and the trial court were correct in arriving at the conclusion that the proper boundary line could not be established from the descriptions of the deeds alone. Also, we do not agree that the trial court adopted a policy of 'the complete ignoring of deeds' in arriving at its conclusion. We think the court's reference to the fact that the descriptions in some instances merely bounded one person's property by the property of an adjoining owner, and that many measurements were qualified with 'more or less' clauses, is fair and applicable to this case. We do not understand the trial court to hold that a deed is too vague or uncertain to be considered merely because it bounds one owner's property by the property of another, or that the deed is uncertain because distances are followed by a 'more or less' clause. We think the trial court was pointing up the uncertainty as to the boundary line between the parties, and the difficulties with which it was faced in reaching a decision.
Assignment of error 12 charges that the trial court erred in giving an estoppel effect to an involuntary paving assessment made against parties other than appellants and in relying materially thereon in determining the boundary line.
We do not consider what the trial court said in the decree, which will appear in this opinion, to be an estoppel or that it gave the evidence of the paving assessments 'an estoppel effect.' We think it bolstered the decree by showing that there was very little difference, less than two feet, in the assessment to the father of appellees and his coterminous owner to the north, Crawford, and the entire block frontage as shown by the Bence survey.
Assignment 3 charges that the court erred in rendering its decree because the evidence was insufficient to support it. Because the trial court discussed the...
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