Mintz v. Millican, 7 Div. 869.

• Decision Date: 10 October 1946
• Docket Number: 7 Div. 869.
• Citation: 29 So.2d 230,248 Ala. 683
• Parties: MINTZ v. MILLICAN et al.
• Court: Alabama Supreme Court

29 So.2d 230

248 Ala. 683

MINTZ v. MILLICAN et al.

7 Div. 869.

Supreme Court of Alabama

October 10, 1946

Rehearing Denied March 6, 1947.

Ross Blackmon, of Anniston, for appellant.

Merrill, Merrill & Vardaman, of Anniston, for appellees.

LAWSON Justice.

This is a statutory action in the nature of ejectment by A. C. Mintz against Lola Mae Cox Millican, R. J. Millican and A. L Dooley.

The defendants, pursuant to § 942, Title 7, Code 1940, filed a plea of disclaimer and made suggestion in writing that the suit arose over a disputed boundary line, and described the location of the line as claimed by them by landmarks monuments, courses and distances, averring that such line was all in accordance with the original government survey. Plaintiff by replication described the location of the boundary line as claimed by him, using landmarks, monuments courses and distances, but did not aver that such line was in accordance with the original government survey. According to averments of plaintiff's replication, he and his predecessor in title have been in adverse possession of the property here involved for more than twenty years and the boundary line as defined by him was fixed by previous surveys and has been recognized and acquiesced in by the coterminous owners as being the true and correct line for more than twenty years.

The trial was had on disclaimer and suggestion of defendants and the replication thereto by the plaintiff. The jury ascertained the true boundary line to be as claimed by defendants and judgment was rendered accordingly. Plaintiff appeals, and presents for review among other questions the refusal of the trial court to permit him to introduce evidence of adverse possession.

This case appears to have been tried by the defendants, and by the trial court, upon the theory that the suggestion of the defendants that the suit arose over a disputed boundary line eliminated any claim of title by adverse possession on the part of the plaintiff.

This question of the admissibility of evidence of adverse possession in cases where the defendant suggests a boundary line dispute has proven perplexing and difficult to this court and no doubt the decisions relating thereto have been the source of much concern to the trial judges and members of the profession. Expressions contained therein cannot all be reconciled.

Mr. Justice Foster, writing for the court in the case of Forrester v. McFry, 229 Ala. 324, 157 So. 68, 70, construes prior decisions on the subject as laying down the following rules:

'In pleas 2, 3, and 4 defendant makes the same suggestion that the suit involves a dispute as to the boundary between their lands, and describes the same line which he claims to be the true line, and then alleges his adverse possession of the land extending to that line, for ten and twenty years, respectively.

'It will be noted that the description, so stated, is that the line extends along the Indian boundary line, and then sets out the location of that line. It therefore undertakes to locate a line fixed by the government survey, nothing more. This cannot be done by adverse possession. Mixon v. Pennington, 204 Ala. 347, 85 So. 562; Wade v. Gilmer, 186 Ala. 524, 64 So. 611; Pounders v. Nix, supra [222 Ala. 27, 130 So. 537].

'We have held that when the issue is not thus framed, but that when a certain described line is alleged to be the boundary, and that line is not controlled by the government survey, it may be so established, in equity, by adverse possession. Yauger v. Taylor, 218 Ala. 235, 118 So. 271; Mink v. Whitfield, 218 Ala. 334, 118 So. 559; Treadaway v. Hamilton, 221 Ala. 479, 129 So. 55; Smith v. Cook, 220 Ala. 338, 124 So. 898; Clarke v. Earnest, 224 Ala. 165, 139 So. 223; Baldwin v. Harrelson, 225 Ala. 386, 143 So. 558. The same is true at law on such an issue. Oliver v. Oliver, 187 Ala. 340, 65 So. 373; Spragins v. Fitcheard, 206 Ala. 694, 91 So. 793; Steele v. Allen, 214 Ala. 285, 107 So. 812.

'This does not conflict with the settled doctrine that defendant cannot in the same suit in ejectment disclaim possession and plead not guilty to the same portions of the land sued for. Mixon v. Pennington, supra; Wade v. Gilmer, supra.

'Section 7457, Code [Code 1940, Tit. 7, § 942], confers the power on courts of law to ascertain the true location of the boundary line, such as is conferred upon courts of equity. Sections 6440 and 6465, Code [Code 1940, Tit. 47, § 3; Tit. 13, § 129].

'When defendant describes the true line by courses, distances, landmarks, and monuments, and does not confine it to the true location of the government survey, adverse possession may be sufficient to establish it as such.'

The...