Treadaway v. Hamilton, 6 Div. 646.

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 221 Ala. 479,129 So. 55
• Parties: TREADAWAY ET AL. v. HAMILTON.
• Decision Date: 29 May 1930
• Docket Number: 6 Div. 646.

129 So. 55

221 Ala. 479

TREADAWAY ET AL.
v.
HAMILTON.

6 Div. 646.

Supreme Court of Alabama

May 29, 1930

Rehearing Denied June 26, 1930.

Appeal from Circuit Court, Fayette County; R. L. Blanton, Judge.

Bill for injunction to remove a cloud from the title, etc., by H. P. Hamilton against Emaline Treadaway and others. From a decree for complainant, respondents appeal.

Affirmed.

J. J. Ray and J. M. Pennington, both of Jasper, for appellants.

W. W. Monroe and S. T. Wright, both of Fayette, for appellee.

THOMAS, J.

The prayer of the bill was to restrain the respondent, her agent or employees, from entering upon complainant's lands, erecting a barbed wire fence thereon, and interfering with his use and occupation thereof, and to remove cloud from his title by reason of respondent's claims, and to establish the boundary line between the parties.

The complainant was in possession and could not bring ejectment. Acker v. Green, 216 Ala. 445, 113 So. 411. And equity has jurisdiction to determine disputed boundary lines. Yauger v. Taylor, 218 Ala. 235, 118 So. 271; Smith v. Cook (Ala. Sup.) 124 So. 898.

The evidence was taken before the judge ore tenus trying the cause without a jury. The rule of Hackett v. Cash, 196 Ala. 403, 72 So. 52; Andrews v. Grey, 199 Ala. 152, 74 So. 62, applies. [129 So. 56.]

Complainant acquired the lands from all the heirs at law of James Studdard-who died intestate more than 25 years ago-his children and grandchildren, and was put into possession of the same to an "old cross fence," being the east and west line, which has been the recognized line by and of the coterminous land owners for about fifty years. Smith v. Eudy, 216 Ala. 113, 112 So. 640; Copeland v. Warren, 214 Ala. 150, 107 So. 94; Smith v. Bachus, 195 Ala. 8, 70 So. 261; Kidd v. Borum, 181 Ala. 144, 61 So. 100, Ann. Cas. 1915C, 1226. It is alleged that the coterminous landowner south of or below the old fence or fence row never occupied, cultivated, nor claimed that his land extended beyond or above said old fence row to the time of sale and conveyance to complainant, and his going into possession thereof and to said south or old fence row line.

The land of respondent was from Dave Studdard, then to his son-in-law Wright, who conveyed to Mr. Treadaway, the deceased husband of respondent-appellant. The evidence shows that respondent's husband cultivated the land south of and up to said old fence row as the dividing line between the respective and coterminous properties, and recognized the possession and ownership north of said line as in the other as indicated. And such was...