Smith v. Cook

• Decision Date: 24 October 1929
• Docket Number: 8 Div. 83.
• Citation: 124 So. 898,220 Ala. 338
• Parties: SMITH ET AL. v. COOK.
• Court: Alabama Supreme Court

124 So. 898

220 Ala. 338

SMITH ET AL. v. COOK.

8 Div. 83.

Supreme Court of Alabama

October 24, 1929

Rehearing Denied Dec. 19, 1929.

Appeal from Circuit Court, Lawrence County; O. Kyle, Judge.

Bill to establish a disputed boundary line by J. M. Smith and Julia Smith against Jim Cook. From a decree for respondent complainants appeal. Affirmed.

Williams & Chenault, of Russellville, for appellants.

R. L Almon, of Moulton, for appellee.

FOSTER J.

The bill in this case was filed by appellants, alleging a dispute between them and appellee as to a portion of the boundary line between two 40's of land owned by them respectively. The bill alleges that appellants and their predecessors have had adverse possession of their 40 up to a certain wire fence, and that appellee claims a strip of land across said fence, and has taken possession of it by building another fence on the land of appellants. The bill is filed, as alleged, to establish the boundary line. There was no demurrer to the bill, but on final hearing relief was denied appellants.

Appellee insists that relief was properly denied because the bill was not sufficient to invoke jurisdiction in failing to allege a request to establish a line before filing the bill, and for not averring a sufficient description of the true line. This view met favor in the circuit court.

The subject of equity jurisdiction to establish disputed boundary lines has given rise to many cases in Alabama. In none of them has the statement been made that the bill is without jurisdictional averment, or even defective, if it fails to allege that there was a request to establish the line. The case of Morgan v. Lake Shore R. Co., 130 Ind. 101 28 N.E. 548, is cited by appellee, but the opinion is that, unless there is an issue shown, a party should not be harassed with unnecessary litigation, and that the bill shows no request to establish the line. But the bill here alleges a dispute and a claim by appellee that the line extends beyond and over upon the lands of appellants. The other case cited of Forney v. Williamson, 98 N.C. 329, 4 S.E. 483, is without application. This court has recently review the whole subject in Yauger v. Taylor, 218 Ala. 235, 118 So. 271. It is there shown that a bill following the former statute (Code 1907, § 3052, subd. 5) was sufficient to confer jurisdiction in the absence of demurrers, even though it did not aver an independent equity, and that since the present enactment (Code 1923, § 6465, subd. 5) no other allegations are necessary to confer jurisdiction, even on demurrer, than to follow the requirements of the statute. The bill certainly shows a dispute and an issue between the parties. This is a requirement of the statute. There are other similar situations in our system. For instance, to enforce the equity of redemption, it is not necessary to allege an offer to redeem and refusal by the mortgagee, yet, if the facts show that there is no controversy the complainant will be taxed with the cost. Ezzell v. First Nat. Bank, 218 Ala. 462, 119 So. 2; Allen v. Evans, 214 Ala. 106, 106 So. 601; McGuire v. Van Pelt, 55 Ala. 344. A bill for reformation will not be stricken on demurrer for failure to make request to correct the error before suit brought. McCaskill v. Toole, 218 Ala. 523, 119 So. 214, So in a bill for specific performance, a request to perform is not necessary to be alleged, but, if respondent appears and offers to perform, and shows the want of a controversy, relief will be granted but without cost. Robbins v. Battle House Co., 74 Ala. 499; Crawford v. Chattanooga Sav. Bank, 201 Ala. 282, 78 So. 58.

We can see no difference in principle here, even if demurrer had been interposed on that ground; certainly not when there is no demurrer. McWhorter's Case, 204 Ala. 269, 85 So. 386. It may be true that in such a suit the bill should point out the true boundary line as is necessary in framing an issue of such nature at law under section 7457, Code. Smith v. Bachus, 195 Ala. 8, 70 So. 261. And the final decree of the court should describe the true boundary line with reasonable particularity. Alverson v. Floyd, 219 Ala. 68, 121 So. 55, Hopkins v. Duggar,

204 Ala. 626, 87 So. 103. But we do not think such averment is jurisdictional, and, in the absence of a demurrer on that ground, relief should not be denied. On decree pro confesso, the court could adjudge that there is a disputed boundary and take the proper steps to fix it and render decree after that had been done.

The bill alleges that appellants own a certain quarter section, and that appellee owns one lying immediately north; that there is a dispute as to the boundary line. It alleges further that appellants and their predecessors have had adverse possession to a certain vaguely described line for twenty years or more, and that, by reason thereof, they are entitled to have it decreed as the boundary line. This is claimed, though such line may extend in point of fact into the 40 acres on the north. It is claimed thereby (and the circuit court held) that the bill is inconsistent, and that it is not the true line between the 40's as properly surveyed which is sought, but appellants in effect seek to recover land not in the 40 alleged to be owned by them. The controversy after all is, as the statute contemplates, a dispute as to the boundary line between property owners. If it is not the true line according to the government numbers which appellants seek, it is none the less a boundary line dispute. The fact that the claim of appellants is based upon adverse possession, and that this is in the nature of a suit for the recovery of a strip of land, though not argued on this appeal, has received much careful attention in this court, and it was finally held that such situation is not sufficient to base a denial of relief under the statute. Yauger v. Taylor, supra.

The opinion filed in the circuit court shows that it concluded that the evidence did not show adverse possession by appellants as respects the true location of the line. The testimony was taken by depositions. There is therefore no presumption of the correctness of the conclusion of the circuit court. Appellants claim that the conclusion is controlled by principles of law settled by this court, which for convenience we will restate. If two coterminous proprietors agree on a boundary line, and each occupies to its location, the possession is presumed adverse, and after ten years has the effect of fixing such line as the true one. Turner v. De Priest, 205 Ala. 313, 87 So. 370; Copeland v. Warren, 214 Ala. 150, 107 So. 94; Gunn v. Parsons, 213 Ala. 217, 104 So. 390; Mink v. Whitfield, 218 Ala. 334, 118 So. 559; Smith v. Harbaugh, 216 Ala. 202, 112 So. 914. If a coterminous landowner holds actual possession of the disputed strip under a claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he thereby acquires title up to that line, even though the belief as to the correct location originated in a mistake, and it is immaterial what he might or might not have claimed had he known he was mistaken. Smith v. Bachus, 201 Ala. 534, 78 So. 888; Hoffman v. White, 90 Ala. 354, 7 So. 816; Hopkins v. Duggar, 204 Ala. 626, 87 So. 103; Shepherd v. Scott's Chapel, 216 Ala. 193, 112 So. 905.

There is, however, a limitation or an additional principle that, if the occupancy to a line is with no intention to claim to it if it should be beyond the true location of the boundary, such possession is not adverse. Hess v. Rudder, 117 Ala. 525, 23 So. 136, 67 Am. St. Rep. 182; Smith v. Bachus, 195 Ala. 8, 70 So. 261; Hodges v. Sanderson, 213 Ala. 563, 105 So. 652.

But there is a further provision ingrafted on the foregoing principle that, when one of the coterminous proprietors builds a fence as the dividing line and occupies and claims to it as such, with knowledge of such claim by the other, the claim of the former is presumptively hostile and the possession adverse. Hess v. Rudder, supra; Smith v. Bachus, 195 Ala. 8, 70 So. 261, quoted in Shepherd v. Scott's Chapel, supra.

If the land is woodland, there must ordinarily "be such a continuous and persistent cutting of timber or wood from the tract, as to be evidence of a claim of ownership, and an advertisement to the world that the party is occupying the entire tract" (Green v. Marlin, 219 Ala. 27 121 So. 19, 22, and citations), or some...