Pippen v. Carpenter

• Decision Date: 27 April 1922
• Docket Number: 2 Div. 774.
• Citation: 208 Ala. 1,93 So. 878
• Parties: PIPPEN v. CARPENTER ET AL.
• Court: Alabama Supreme Court

93 So. 878

208 Ala. 1

PIPPEN v. CARPENTER ET AL.

2 Div. 774.

Supreme Court of Alabama

April 27, 1922

Appeal from Circuit Court, Greene County; R.I. Jones, Judge.

Bill by W. W. Pippen against Fannie Carpenter and another to establish boundary line. From a decree denying relief complainant appeals. Affirmed.

S. W H. Williams, of Greensboro, for appellant.

Harwood McKinley, McQueen & Aldridge, of Eutaw, for appellees.

SAYRE J.

Complainant (appellant), claiming to own that part of the southwest quarter of section 11, township 22, range 1 east, south of Porter's branch in Greene county, filed this bill against his coterminous proprietor on the north side of the branch averring that, since the quarter section had been divided by reference to the branch or stream in 1835, the stream had changed its course from various causes so that at the present time about seven acres of land is on defendant's side which were formerly on complainant's. The prayer of the bill is that the court appoint commissioners to mark, define, and establish the true boundary lines between the land of complainant and those of defendant. Answering, defendant averred that the branch had not changed its course, but, if it had, the change had been gradual and imperceptible, and was still the true boundary between the parties. The court heard the witnesses, and was of opinion that Porter's branch was the true boundary between the lands of the parties, and if there had been any change in its course, such change had been gradual and imperceptible, and that the branch was still a visible boundary and needed no marking or other identification.

Without intending to deprecate the decisions in Goodman v. Carroll, 205 Ala. 305, 87 So. 368, and Turner v. De Priest, 205 Ala. 313, 87 So. 370, in view of the fact that there is no want of power in a court of equity to determine the titles to land, and that the court, without objection from the parties, proceeded to a determination of the questions presented by the bill and answer, we think we must examine the pleadings and proof as affording a basis for the decree. Penny v. British & American Mtg. Co., 132 Ala. 357, 31 So. 96; Chappelear v. McWhorter, 204 Ala. 269, 85 So. 386; Billups v. Gilbert, 195 Ala. 518, 70 So. 145.

Certain boundaries are of more importance than quantity in the designation of lands. Stein v. Ashby, 24 Ala. 521; Busbee v. Thomas, 175 Ala. 423, 57 So. 587; Williams v. Bryan, 197 Ala. 675, 73 So. 372. In the conveyances by which the parties deraign title the branch was referred to as a common boundary, and such it became...