Pounders v. Nix

• Decision Date: 17 April 1930
• Docket Number: 8 Div. 166.
• Citation: 130 So. 537,222 Ala. 27
• Parties: POUNDERS v. NIX.
• Court: Alabama Supreme Court

130 So. 537

222 Ala. 27

POUNDERS v. NIX.

8 Div. 166.

Supreme Court of Alabama

April 17, 1930

As Modified on Denial of Rehearing October 30, 1930.

Appeal from Law and Equity Court, Franklin County; B. H. Sargent Judge.

Action in the nature of ejecment by W. A. Nix against Luther Pounders. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

H. H Hamilton, Russellville, for appellant.

J. Foy Guin, of Russellville, for appellee.

BROWN J.

Appellee Nix brought statutory ejectment against appellant to recover possession of the west half of the northwest quarter of section 35, township 7, range 12 west, situated in Franklin county, Ala.

The defendant, who owned the adjoining tract east of the land described, filed a plea of disclaimer, and as authorized by section 7457 of the Code 1923, made suggestion in writing that the suit arose over a disputed boundary line, describing the location of the line as "beginning at the northeast corner of Section 34, Tp. 7, Range 12, west, in Franklin County, Alabama, at a corner stone which is the corner of said section according to the Government survey, and running south 4~ 9' E, to the southeast corner of said section according to the Government survey, said line being more particularly described as follows: Beginning at the northeast corner of Section 34, Tp. 7, R. 12, and running south 4~ 9', according to a certain survey recently made by I. T Jackson, following stobs which were placed or planted by said Jackson, and passing what is known as Taylor Spring, at a point where there was at the time of said survey a plank placed immediately east of or near the water edge in said spring, on the east side and at a point where said surveyor marked said plank, and thence south by stobs or stakes as were placed or planted by said Jackson to the southeast corner of said quarter section, thence south to S.E. corner of said section." The plaintiff did not take issue on the defendant's plea disclaiming possession, but filed a replication to the suggestion as to the location of the boundary line, asserting: "That the true boundary line between the west 1/2 of N.W. 1/4 Sec. 35, Tp. 7, Rg. 12, belonging to plaintiff, and the East 1/2 of N.E. 1/4 Sec. 34, T. 7, Rg. 12, belonging to defendant, begins at the common northerly corner of said sections 34 and 35, as averred in the answer, and runs south 4 degrees, 9 minutes East, as stated in aid answer, but plaintiff avers that said true boundary line crosses the spring, running across the middle of the spring, which spring is formed by the streams flowing from the ground, leaving one of said three streams on plaintiff's side of said true boundary line, and one of said three streams on defendant's side of said true boundary line, the third stream being as the line."

The defendant's suggestion and the replication filed thereto by the plaintiff were in compliance with the statute, Code of 1923, § 7457, which provides inter alia: "The defendant may *** file his suggestion in writing that the suit arises over a disputed boundary line, in which suggestion he shall describe the location of the true line and thereupon the plaintiff shall take issue, or shall reply in writing in which replication he shall set forth his contention as to the location of the true line, and the court or jury trying the issue shall ascertain the true location of the boundary line, and judgment shall be rendered accordingly, and order the sheriff to establish and mark the true line as ascertained, and in such case the costs shall be apportioned justly and equitably."

Interpreting the pleadings in the light of the statute, it clearly appears that the parties are agreed that the section line between sections 34 and 35, township 9, range 7 west, is the true line, and that the sole controversy between the parties is as to the location of the line where it passes the spring; that is, whether it passes immediately east of the spring at the water's edge, or at or near the center of the spring.

This issue, like any other issue, is due to be determined on evidence introduced by the parties to support the averments of their respective pleadings, and this is true notwithstanding the well-settled principle that section lines established by government surveys "cannot be altered or controlled by any other survey." Code 1923, § 7457; Nolin v. Parmer, 21 Ala. 66; Mixon v. Pennington, 204 Ala. 347, 85 So. 562, 563.

The purpose of the evidence showing a survey by Jackson, the county surveyor, at the request of one of the parties, the other being present, was not to contradict or control the government survey, but to aid the court and jury in determining the issue as to the location of the section line at or near the spring. That such evidence is admissible for such purpose is recognized, if not in fact affirmed, in Nolin v. Parmer, and Mixon v. Pennington, supra.

In the first-cited case, the court, speaking of an ex parte survey made by a county surveyor, observed: "Although such survey may not within itself be evidence, yet that the surveyor may be examined to prove the boundaries, and that he may illustrate his evidence by the survey so made, we entertain no doubt; and when the surveyor, by his own testimony, has proved the accuracy of his survey, it then may go to the jury as testimony tending to prove the locality of the land and its boundaries." Nolin v. Parmer, 21 Ala. 71.

And in Mixon v. Pennington, the court after a statement of the pleadings, proceeded to state their effect, as follows:

"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 an issue. *** It may be further said in this connection that there was no difference between the parties, or their respective surveyors, as to the location of the northeast corner of section 31; the difference was in locating the line between the northeast and northwest corners, the divergence between their respective lines amounting to 77 yards at the range line on the west."

Further on in the opinion, treating questions of evidence: "The court does not consider that the refusal to exclude this testimony was reversible error. The witness did not pretend to be able to locate the line in dispute. His testimony only tended to show that more than 20 years previously some one had run a line practically as described in the testimony of Crawford, who had testified that he ran his line in 1899, marking it by 'chops' on trees and by putting down stobs along the line of the government survey. This evidence of the witness Teal tended to support the defendant's claim that the line to which he claimed was the true, or government, line. And it was peculiarly appropriate that this testimony should be submitted to the jury because it tended to corroborate the testimony of defendant's witness Crawford, whom plaintiff had sought to discredit by testimony tending to show that he (Crawford) had run a crooked line-a line to suit his client rather than the historical fact."

The authorities are agreed, in such controversies, that any testimony tending to show the location of the line as established by the government survey is admissible, and the parties are not limited to the expediency of having the line established by a surveyor. "In cases of disputed boundary, all evidence, whether documentary or parol, which bears upon the point in issue and which is not inadmissible on general principles, may be received in evidence, including records of original proprietors, their plans and maps and the location of lands by ancient settlers." 4 R. C. L. p. 121, §§ 61, 62, 63, 64, and 65; Deal et al. v. Hubert et al., 209 Ala. 18, 95 So. 349; Mixon v. Pennington, 204 Ala. 347, 85 So. 562; Hess v. Rudder, 117 Ala. 525, 23 So. 136, 67 Am. St. Rep. 182; Vandiver v. Vandiver, 115 Ala. 328, 22 So. 154; Garrison v. Glass, 139 Ala. 512, 36 So. 725; Aldrich Mining Co. v. Pearce, 192 Ala. 195, 68 So. 900; Smith v. Bachus, 195 Ala. 8, 70 So. 261.

And, "Where the location of section lines, or their subsidiaries, is in dispute, a witness who is not an expert surveyor may testify to existing and visible lines and monuments which have been adopted or assented to by adjacent owners, but he cannot, upon such knowledge alone, give his opinion as to what is the true line." Deal v. Hubert et al., 209 Ala. 18, 95 So. 349, 350. [Italics supplied].

When the stated principles are applied, many of the assignments of error based upon rulings on evidence appear clearly without merit.

However, what Joe Burrow, plaintiff's immediate predecessor in title, said to plaintiff in the absence of defendant, as to the location of the line, was res inter alios acta, and the objection thereto should have been sustained. Deal et al. v. Hubert et al., supra; Wade v. Gilmer, 186 Ala. 524, 64 So. 611.

And the evidence, admitted over the timely objection of the defendant, going to show that defendant tore down the plaintiff's fence, the value of the fence, the fact that plaintiff's stock got out, that defendant afterwards built a fence around the spring and enclosed it with his land, that the spring was in plaintiff's pasture, and that was the only place the stock had to get water, and that plaintiff had to carry water for his stock, and other related facts, was wholly immaterial to the issues, and its tendency was to divert the minds of the jury from the issues being tried, and to prejudice the jury against the defendant.

The statutes regulating the taxation of costs in the trial of causes, generally, apply equally to case...