Page v. Hawk, 4 Div. 467.

• Decision Date: 18 December 1947
• Docket Number: 4 Div. 467.
• Citation: 33 So.2d 8,250 Ala. 26
• Parties: PAGE v. HAWK.
• Court: Alabama Supreme Court

33 So.2d 8

250 Ala. 26

PAGE v. HAWK.

4 Div. 467.

Supreme Court of Alabama

December 18, 1947

Lewis & Lewis, C. R. Lewis, P. S. Lewis and J. Hubert Farmer all of Dothan, for appellant.

Alto V. Lee, III, of Dothan, for appellee.

LAWSON Justice.

This is a statutory action in the nature of ejectment brought by Augusta Page against Marion Hawk to recover a small strip of land forty-five feet in length, two and three-fourths feet in width at the west end and narrowing to a width of one foot and three inches at the east end.

The cause was tried before a jury and resulted in a verdict and judgment for the defendant. Motion for new trial having been denied, plaintiff has appealed to this court.

The parties are owners of adjoining city lots in Dothan. Each claims the strip in question. Hawk's lot is immediately north of that of plaintiff, Augusta Page.

The issue was not made up as authorized by § 942, Title 7, Code 1940, to ascertain the true boundary line. Under the pleadings the question for determination by the jury was whether the plaintiff or defendant had legal title to the strip in question. But under the evidence in this case the answer to that question depended entirely on the location of the boundary line between the property of these parties. So actually a boundary line question is presented, although there was no formal suggestion of a boundary line dispute. Brantley v. Helton, 224 Ala. 93, 139 So. 283; Alverson et al. v. Floyd, 219 Ala. 68, 121 So. 55.

There was no question presented as to the chain of title of either the plaintiff or the defendant to the land described in their conveyances. The plaintiff introduced deeds showing that her chain of title dated back to 1905. Plaintiff obtained a deed to her lot in June, 1937, from her daughter. The lot was described in that deed as follows: 'One lot in the town of Dothan on the west side of Lena Street and bounded on the North by property of W. W. Hawk and C. M. Page, on the east by Lena Street, on the South by lands of the Conner estate on the West by lands of the colored baptist church; said lot having a Frontage of 42 feet and running back 107 feet.'

It was admitted that Marion Hawk, the defendant in this case, is the 'sole and only heir at law' of W. W. Hawk, who died January 4, 1939.

In May 1921, the said W. W. Hawk obtained a deed from Mrs. Lula Young and husband to the following described property: 'One lot or tract of land and improvements thereon, in Dothan, Alabama, beginning at the crossing of Lena and North Streets, and running westward along North Street forty-five feet (45 ft.), thence southward Forty-four feet (44 ft.), thence east Forty-five feet (45 ft.) to the edge of Lena Street, thence north Forty-four feet (44 ft.) to point of beginning, said lot containing 1/16 of an acre, more or less, and being the lot deeded T. E. Russ by Mary Wright Nov. 17, 1911.' (Emphasis supplied.)

So it appears from the above referred to conveyances that plaintiff has title to a lot with a frontage of forty-two feet on Lena Street and a depth of 107 feet, and that plaintiff's lot for a distance of forty-five feet is bounded on the north by the lot now owned by the defendant, as the heir at law of W. W. Hawk, deceased.

The evidence shows without dispute that for more than twenty years there was a fence which was recognized by the owners of the two lots as being the boundary line. Owners of both lots claimed up to this fence.

In March, 1945, plaintiff's lot was vacant. At that time at least a portion of the fence was still standing. Defendant wanted to construct a building on the southern part of his lot and secured permission of plaintiff to remove the fence. The building was constructed and covers the strip of land here sued for.

The evidence as to where the boundary line fence was located before it was torn down in order to facilitate the construction of defendant's building is in sharp conflict. Witnesses for plaintiff testified that the southern wall of the building is located south of the old fence line, whereas defendant's witnesses testified that the southern wall of the building was purposely constructed several inches north of the line where the fence had been.

Plaintiff contends that a survey which she had made of the defendant's lot and which she introduced in evidence conclusively shows that the strip of land here involved belongs to her. This survey does show that the southeastern corner of the building constructed by plaintiff is forty-five feet and three inches south of the south edge of a sidewalk on the south side of North Street and that the southwest corner of the said building is forty-six feet and nine inches south of that sidewalk, whereas plaintiff's deed called for only forty-four feet frontage on Lena Street and for the southwest corner of said lot to be only forty-four feet from North Street when the point of beginning named in the deed is used in making a survey.

But plaintiff's survey is not conclusive of the issue here involved, because the point for beginning a survey of the land conveyed by deed from Mrs. Young and husband to W. W Hawk was merely described as 'at the crossing of Lena and North Streets' and the civil engineer who made the survey for the plaintiff testified that he was not familiar with the point at which those streets crossed in 1921 and that he used as a place of beginning in...