Smith v. Bachus, 7 Div. 911

• Court: Supreme Court of Alabama
• Writing for the Court: SAYRE, J.
• Citation: 201 Ala. 534,78 So. 888
• Docket Number: 7 Div. 911
• Decision Date: 04 April 1918
• Parties: SMITH v. BACHUS et al.

78 So. 888

201 Ala. 534

SMITH
v.
BACHUS et al.

7 Div. 911

Supreme Court of Alabama

April 4, 1918

Rehearing Denied May 9, 1918

Appeal from Circuit Court, Clay County; A.H. Alston, Judge.

Ejectment by Hoyt B. Bachus and others against J. Van J. Smith. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Cornelius & Lackey, of Ashland, for appellant.

Blackwell, Agee & Bibb, of Anniston, for appellees.

SAYRE, J.

This was a statutory action of ejectment. The pleadings and the evidence show that the contention between the parties arose out of a disputed boundary line, which might have been determined by the correct location of the government survey line between S.W. 1/4 of S.W. 1/4 of sec. 10, for which plaintiff (appellee) sued, and S.E. 1/4 of S.E. 1/4 of sec. 9, T. 18, R. 9, in the county of Clay, or on defendant's (appellant's) claim of title by adverse possession. There was, however, no formal suggestion that the suit arose over a disputed boundary line, as contemplated in the last part of section 3843 of the Code. Plaintiff relied upon the line surveyed and located by Curry and Caldwell in 1897 as the true line between the 40's in question, while defendant contended that the true line was shown by an old hedgerow some distance to the east of the Curry-Caldwell line, and, in any event, that he had acquired title to the land between by adverse possession. The Curry-Caldwell line was established by the verdict and judgment. This is defendant's second appeal. Smith v. Bachus, 195 Ala. 8, 70 So. 261.

That part of the court's oral charge to which exception was reserved, though read in connection with the subsequent correction [78 So. 889.] or explanation, was error. It misplaced the general burden of proof, which of course rested upon the plaintiff, or it assumed that the land in controversy, defined as we have indicated by the Curry-Caldwell line on one side and the old hedgerow on the other, was in section 10, as plaintiff claimed. The correct location of the government survey line between sections 9 and 10, and so, aside from the issue of adverse possession, the line between the parties, was disputed in the pleadings and the evidence, and any assumption by the court one way or the other as to this disputed fact was erroneous and manifestly prejudicial.

The court also erred in giving charge 10 at plaintiff's request. It appeared in evidence clearly enough that defendant claimed the land on his side of...