Mixon v. Pennington

• Decision Date: 22 April 1920
• Docket Number: 4 Div. 815
• Citation: 85 So. 562,204 Ala. 347
• Parties: MIXON v. PENNINGTON.
• Court: Alabama Supreme Court

85 So. 562

204 Ala. 347

MIXON v. PENNINGTON.

4 Div. 815

Supreme Court of Alabama

April 22, 1920

Rehearing Denied June 3, 1920

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Ejectment by Travis Mixon against Thad B. Pennington to establish a boundary line. Judgment for defendant, and plaintiff appeals. Affirmed.

Farmer Merrill & Farmer, of Dothan, and Hill, Hill, Whiting & Thomas and R.T. Rives, all of Montgomery, for appellant.

Lee &amp Tompkins and F.M. Gaines, all of Dothan, for appellee.

SAYRE J.

This is the second appeal (74 So. 238) in a statutory action of ejectment against appellee for the recovery of a tract of land described in count 1 as "commencing at the N.W. corner of the N.W. 1/4 of N.W. 1/4 of section 31 township 1, and range 27, and running thence south 77 yards, thence east 210 yards, thence north 77 yards, thence west 210 yards to starting point," and in count 2 as follows:

"Commencing at a point on the west side of N.W. 1/4, of N.W. 1/4 section 31, township 1, range 27, where the survey made by W.R. Koonce in the year 1913 intersects the said west side of the said N.W. 1/4 of N.W. 1/4, section 31, township 1, range 27, and where Travis Mixon on this day drove down a land stob, and running thence south 77 yards, thence east 200 yards, thence north 77 yards, thence west 210 yards, back to starting point, and the land heretofore described is the same land as is described in count one of complaint."

And the count, in Code form otherwise, concluded with the averment that--

"The true dividing line between said N.W. 1/4 of N.W. 1/4, section 31, township 1, range 27, and S.W. 1/4 of S.W. 1/4, section 30, township 1, range 27, is the north boundary line of the said above-described tract of land."

For plea the defendant disclaimed possession of the premises sued for and suggested that the suit arose over a disputed boundary line. Code 1907, § 3843. There was no plea of not guilty. Plaintiff did not take issue on the disclaimer, though it became evident in the course of the trial that the dispute was as to the true location of the line between sections 30 and 31, township 1, range 27, and that, if the line were correctly located in agreement with defendant's contention, defendant was in possession of the land in controversy. Thereupon the court very properly made up the issue between the parties as one to be determined by the true location of the line between their respective quarter sections, "plaintiff owning the N.W. 1/4 of the N.W. 1/4 of section 31," etc., "and the defendant owning the S.W. 1/4 of the S.W. 1/4 of section 30," etc. It will be observed that the issue thus formulated called for the location of a line fixed by the government survey, nothing more, and that the question of title was not in issue; plaintiff waiving any claim of title that may have been acquired by adverse possession prior to defendant's entry upon the premises. Wade v. Gilmer, 186 Ala. 524, 64 So. 611.

Plaintiff's witness Merritt was a surveyor of 25 years' experience and knew the land in controversy. He testified, in substance, that, with the aid of the field notes of the government survey, commencing at the southwest corner of section 31, on the Ellicott line between Alabama and Florida, he had surveyed the section and the line in question, and his testimony tended to establish the line in accordance with plaintiff's contention. If there was error in excluding the testimony of the witness that he found a stob on the range line 12 chains north of the southwest corner, and that at the northwest corner he found nothing but the witness tree (probably the witness said "trees"), such error was rendered harmless by the witness' testimony, to be found at other places in the record, where, in response to plaintiff's questions, he entered without objection into a full detailed statement as to what he found at the two points inquired about, i.e., as to witness trees substantially as noted in the field notes.

The assignment of error which complains of the ruling of the court by which was excluded testimony of the witness that "chops," meaning "blazes," which he found along the line he followed between sections 30 and 31, indicated the original survey, was cured by the subsequent testimony of the witness to the effect desired by plaintiff.

Objection to the question put to this witness by plaintiff, "And you were running this line according to the field notes?" was sustained. This ruling is to be justified on the ground that the question was leading and asked for a conclusion of the witness.

Our preliminary statement as to the issue made up in this cause will suffice to indicate the irrelevancy of the proposed testimony of the witness George Newton that Morris White, who had once owned and lived upon the land in dispute, had cleared the land up to the Merritt line. This testimony did not tend to establish the Merritt line as identical, precisely or approximately, with the government line.

Plaintiff's testimony to the effect that at the northeast corner Koonce and Crawford did find stumps or trees at certain distances and in certain directions in accordance with the field notes, was properly excluded as hearsay. May v. Willis, 200 Ala. 583, 76 So. 941. It may be further said in this connection that...