Millican v. Mintz, 7 Div. 155

• Citation: 68 So.2d 702,260 Ala. 22
• Decision Date: 19 November 1953
• Docket Number: 7 Div. 155
• Parties: MILLICAN et al. v. MINTZ.
• Court: Supreme Court of Alabama

Page 702

68 So.2d 702

260 Ala. 22

MILLICAN et al. v. MINTZ.

7 Div. 155.

Supreme Court of Alabama.

Nov. 19, 1953.

Merrill, Merrill, Vardaman & Matthews, Anniston, for appellants.

Ross Blackmon, Anniston, for appellee.

SIMPSON, Justice.

Statutory action in the nature of ejectment by plaintiff Mintz against defendants Millican.

This court has previously considered this case three times. Mintz v. Millican, 248 Ala. 683, 29 So.2d 230; Millican v. Mintz, 251 Ala. 358, 37 So.2d 425; Id., 255 Ala. 569, 52 So.2d 207. There was satisfactory evidence to establish that the plaintiff had been in adverse possession of certain lands for the required number of years so as to ripen into title. Regrettably, however, due to the manifest uncertainty or inconsistency in the jury's verdict on which the judgment must rest--to be hereafter demonstrated--we, perforce, must order a reversal.

The plaintiff's amended complaint consisted of two counts. In the first of these he sought to recover a tract of land 179 feet in length by 1345 feet in width, described as being off the north side of the SE 1/4 of the SE 1/4 of Section 22, Township 13, Range 7 East; in his second count, the plaintiff sought to recover a tract of land 46 feet and 4 inches in length by 1345 feet in width, said land described as lying and being in the NW 1/4 of the SE 1/2 of Section 22, Township 13, Range 7 East in Calhoun County, Alabama. The defendant, pursuant to § 942, Title 7, Code 1940, made the suggestion that the suit arose over a disputed boundary line and described the true boundary line as being along certain quarter section lines as shown by a survey made by one Lee, hereinafter referred to as the Lee line.

Plaintiff in his first replication took issue with the defendant as to the location of the disputed boundary line. In the plaintiff's third replication, he alleged that one Morton had also surveyed this land; that the lines of this Morton survey traversed the old division lines between the quarter sections and that the coterminous owners had, for more than twenty years prior to the institution of the suit, recognized and acquiesced in the Morton line as being the true and correct line.

In replication eight (rather unintelligible from the calls given), the plaintiff alleged that approximately thirty-five years previously one McClellan surveyed the division line between NE 1/4 of the SE 1/4 and the SE 1/4 of the SE 1/4; that said division line began on the east side of the SE quarter section on the north and south line separating the SE 1/4 of the SE 1/4 from the NE 1/4 of the SE 1/4, at a point on the north and south line north of the SE 1/4 of the SE 1/4 and extending thence west a distance of 1320 feet from the south line of the SE 1/4; further that the coterminous owners have since such survey acquiesced in and conceded the correctness thereof and that the plaintiff had been in continuous and uncontested possession of the tract lying north of the McClellan survey for a period of from ten to forty years; hence the McClellan survey and land line was the true line, and the plaintiff further alleged that the survey of the defendants does not involve a section line established by the government.

In replication numbered 9, the plaintiff alleged that said Morton ran the east and west division line between the two quarter sections and confirmed the correctness of the McClellan survey.

In replication numbered 10, the plaintiff alleged that in 1930 he caused a survey to be made of the division line between the SW 1/4 of the NE 1/4 and the NW 1/4 of the SE 1/4 by Morton. Immediately thereafter he entered into possession of the land described in Count 2 in pursuance of the survey as the correct line and has remained in the possession thereof. He further alleged that the Morton line is the true line.

The initial inquiry, therefore, is which outside quarter section line (the east section line of Section 22), the Lee line or the Morton line, is the true outside quarter section line as established by the government? And secondly, if the Morton line is not the outside quarter section line and different from that as established by the government, did the plaintiff acquire title to the land lying north of the Morton line by virtue of his adverse possession?

From a judgment in favor of the plaintiff, the defendant has appealed claiming, inter alia, error on the part of the trial court in overruling his motion for a new trial. One of the grounds for such was the alleged inconsistency in the jury's verdict, resulting in the plaintiff's securing certain lands which he did not sue for in his complaint or include in his description of his boundary line.

The verdict of the jury reads as follows:

'We the jury find the issues in favor of the plaintiff and fix the true boundary line between plaintiff's and defendant's property as follows: A line beginning at a point on the east line of Section 22, Township 13 south, range 7 east, 1153 feet north of the southeast quarter of said Section 22, running thence west 1345 feet to the west line of the southeast quarter of the south east quarter of said section 22, thence north along said quarter section line to a point on the quarter section line dividing the northeast quarter of the southeast quarter from the northwest quarter of the southeast quarter 46 feet 4 inches South of the northeast...