Taylor v. Fomby

• Decision Date: 08 December 1897
• Citation: 116 Ala. 621,22 So. 910
• Parties: TAYLOR v. FOMBY.
• Court: Alabama Supreme Court

22 So. 910

116 Ala. 621

TAYLOR v. FOMBY.

Supreme Court of Alabama

December 8, 1897

Appeal from circuit court, Randolph county; E. M. Oliver, Special Judge.

Action by Sarah J. Fomby against J. B. Taylor. From a judgment for plaintiff, defendant appeals. Affirmed.

This was a statutory action of ejectment.

The complaint claimed "that part of section ten, township twenty, range ten, in Randolph county, Ala., lying west of a fence built by J. B. Taylor on or about March 20, 1896," etc.

The defendant, for plea to the complaint, denied that he was, or ever had been, in possession of any land whatsoever in said section 10, township 20, range 10, in said county, and disclaimed possession.

The parties entered into an agreement for the trial of the cause in which they admitted, "that the only question of difference and dispute between the parties was, as to the true location, as run and established by the surveyors who made the original United States government surveys, of the section line, running from the southwest corner of section 10, township 20, range 10, in Randolph county, north, to the Tallapoosa river."

It was further admitted, that one Leonidas Jones, as one of the county surveyors of Randolph county, made a survey of said section line, at the request of the defendant, on the _____ day of March, 1896, having for his guidance certified copies of the original field notes of the government survey of the lands divided by the line in question; and that O. H Perryman, as one of the county surveyors of said county, at the request of the plaintiff, did, on the 25th day of May 1896, make a survey of said line; that he had a certified copy of said field notes for his guidance in making his survey, and that the line he ran did not coincide with the line formerly run by said surveyor, Jones.

It was admitted, "that both surveyors, in making their respective surveys of said line, began at the true point of location of the section corner, at the southeast corner of section 9, or southwest corner of section 10, township 20 range 10, in Randolph county, Ala.," and hence, the only question of dispute was, as to the correctness of the running of said line, and it was further agreed that the defendant owned and had title to section 9, west of said true line, wherever it might be, and that plaintiff owned and had title to section 10, east of the true line, wherever it might be.

The copy of the field notes used by each surveyor was introduced in evidence, as were the written surveys made by each. The original government survey purports, by the field notes, to have been run on a magnetic variation of 6 deg, each, Huntsville meridian. Jones, in his survey, states, that he found the line "to run on a magnetic variation of 2 1/2 degrees east." Perryman, in his testimony, states, that he ran the line north to the bank of Tallapoosa river, at a magnetic variation of 6 deg. east, the same variation as that indicated on the field notes by which the United States survey was made. The evidence tended to show that Perryman's survey was made by and according to the monuments and landmarks as were indicated on the field notes by which the original survey was made by the government. It also tended to show that Jones, in his survey, did not discover these natural landmarks, and he was guided more by courses and distances.

It was further shown that one Joseph Curry, a county surveyor, ran this line in 1856, without the aid of field notes, but set the compass so as to make the line run to meet the line exactly opposite the same section line at the north bank of the Tallapoosa river, and that the line Curry ran was the same as the one run by Perryman.

The line run by Perryman was considerably west of the one run by Jones, and defendant built his fence on the line run by Jones and took possession of the land lying west of the fence.

It was further shown, "that more than forty years ago, a fence had been built along the Curry line, through the cleared land (a part of the land between the owners on each side of the line having been cleared and a part being still in the woods), and had been used for a great part of the time since, by the owners of the land on each side of the line as the dividing line between said sections"; that said line had been so recognized by them, and that plaintiff had been in possession of the land sued for before March, 1896, for about 30 years.

The court admitted such testimony as relevant and instructed the jury that they could only look to it, if true, as a circumstance to be considered by them, together with all the other evidence in the cause, in determining where the true line had been run by the United States surveyors.

Upon the introduction of all the evidence the court in its oral charge instructed the jury that "the magnetic variation of the needle from the true meridian had no bearing or influence in the case." To this part of the court's oral charge the defendant separately excepted, and also separately excepted to the court's refusal to give each of the following charges requested by him: (1) "If the jury believe the evidence, you will find for the defendant." (2) "The magnetic variation, since the original government survey of the line in question, has been and is now from an easterly to a westerly direction, and that if Surveyor Perryman ran the line without regard to this variation, then you must find for the defendant."

There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Stell Blake, for appellant.

J. W. Oliver, for appellee.

HARALSON J.

The 1st, 2d, 3d and 4th assignments of error are without merit. That boundaries may be proved by hearsay, and by the long acquiescence of par...