Livingston v. Nelson

• Decision Date: 07 June 1917
• Docket Number: 7 Div. 859
• Citation: 76 So. 449,200 Ala. 507
• Parties: LIVINGSTON v. NELSON.
• Court: Alabama Supreme Court

76 So. 449

200 Ala. 507

LIVINGSTON v. NELSON.

7 Div. 859

Supreme Court of Alabama

June 7, 1917

Appeal from Circuit Court, Cherokee County; W.W. Haralson, Judge.

Statutory ejectment by J.W. Livingston against Sam Nelson. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Hugh Reed and R.F. Conner, both of Center, for appellant.

Hugh White, of Gadsden, for appellee.

SOMERVILLE J.

The record of the proceedings and judgment in the case of Livingston v. Story, an ejectment suit tried upon the suggestion of disputed boundary, though it may have involved the location of a continuation of the same line here in issue, was not admissible in evidence in this case, either as a res judicata, or otherwise. It was an independent case, and privity between Story and this defendant does not appear. The record was properly excluded on principles that are elementary and conclusive.

So also, the questions to plaintiff's witness, involving reference to, and comparisons with, the line established by the verdict in the Story Case, were obviously improper, and defendant's objections were properly sustained.

The issue being upon the location of the boundary line between the parties, their respective deeds to the adjoining tracts were properly admitted in evidence.

These deeds show that, so far as color of title is concerned, the boundary line to be located was a subsidiary line of the government survey, viz. the line between the S.W. 1/4 of the N.W. 1/4 of the section, plaintiff's land; and the N.W 1/4 of the S.W. 1/4, defendant's land. The evidence shows that the adverse possession of the disputed strip by defendant, and his prior privies in title, did not begin before 1884 or 1885, and could not have ripened into a hostile title before the passage of the act of February 11 1893 (Code 1896, § 1546), and, since they had no color of title, nor bona fide claim of purchase, and filed no declaration of adverse claim (as provided by that act), and it does not appear that they have annually listed the land for taxation for 10 years prior to the commencement of this action, as provided by the amended statute (Code 1907, § 2830), they could not acquire title to this strip by adverse possession since 1893, however continuous or protracted. Jeffreys v. Jeffreys, 183 Ala. 617, 62 So. 797; Wade v. Gilmer, 186 Ala. 524, 64 So. 611; Oliver v. Oliver, 187 Ala. 340, 65 So. 373.

The only issue, therefore, was upon the true location of the government survey, between these two...