Turner v. De Priest

• Decision Date: 10 February 1921
• Docket Number: 4 Div. 897
• Citation: 87 So. 370,205 Ala. 313
• Parties: TURNER v. DE PRIEST
• Court: Alabama Supreme Court

87 So. 370

205 Ala. 313

TURNER v. DE PRIEST

4 Div. 897

Supreme Court of Alabama

February 10, 1921

Appeal from Circuit Court, Crenshaw County; A.E. Gamble, Judge.

Bill by J.V.G. De Priest against John W. Turner to establish a disputed boundary line. From a decree overruling demurrers to the bill, respondent appeals. Affirmed.

Frank B. Bricken, of Luverne, for appellant.

Lane &amp Lane and Powell & Hamilton, all of Greenville, for appellee.

THOMAS J.

The bill to establish an uncertain or disputed boundary line between the lands of coterminous owners was filed under the statute.

The statutory provisions are: "The powers and jurisdiction of courts of chancery extend" to the first four causes long embraced in the statute, and to the new provisions of subdivision 5, "To establish and define uncertain or disputed boundary lines," this latter subdivision being inserted by the Code commissioner. Code 1907, § 3052.

The powers and jurisdiction of chancery courts were extended by statute (long prevailing in this state) to civil causes in which a plain and adequate remedy at law is not provided; to granting relief in cases founded on a gambling consideration to subjecting an equitable title or claim to real estate to the payment of debts; and "to such other cases as may be provided by law." Code 1896, §§ 638 (720) (616) (698) (602). This court had held that the jurisdiction of courts of equity extended to the establishment of disputed boundaries and that the jurisdiction is ancient and well-defined, but did not extend to every case of disputed boundary, or every case where the boundary has become confused or obliterated unless some special ground of equitable interposition is shown, predicated on the fraud or neglect of duty of the defendant, whereby the confusion or obliteration has resulted. Ashurst v. McKenzie, 92 Ala. 484, 487, 9 So. 262; Wadsworth v. Goree, 96 Ala. 227, 10 So. 848; Guice v. Barr, 130 Ala. 570, 30 So. 563; Hays v. Bouchelle, 147 Ala. 212, 41 So. 518, 119 Am.St.Rep. 64; Gulf Red Cedar Co. v. Crenshaw, 148 Ala. 343, 351, 42 So. 564.

When the section concerning the jurisdiction and powers of chancery courts was rewritten for the Code of 1907, the new provision to establish and define uncertain or disputed boundary lines was incorporated. In Billups v. Gilbert, 195 Ala. 518, 70 So. 145, the parties to a suit to "define boundary" had entered into a consent decree fixing the boundary and providing for commissioners to lay it out, but this decree made no provision for a report by the commissioners of the data or evidence upon which they acted. Held that such report as to the true line could not be revised by this court in the absence of evidence of fraud. It was there insisted for appellant that the chancery court was without rightful power, under the definition of its jurisdiction in Code, § 3052, to try and determine title to land adverse to the decisions under the former statute, saying:

"Under the accepted practice in equity to accord full decision in a cause where jurisdiction for a related purpose exists or has been acquired; for 'there is no want of power in a court of equity to determine titles to lands.' *** Whatever may be the proper interpretation and effect of the addition of subdivision 5 to Code, § 3052, when considered in the light of the two conditions the provision of that subdivision was doubtless intended to meet or to affect, the consent decree *** did not comprehend the trial or determination of any controverted question of title to the lands, the boundary of which, on one side, was involved."

Thus the question now presented for decision was unnecessary to a decision in Billups v. Gilbert, supra. Again the statute was adverted to in Chappelear v. McWhorter, 85 So. 386, where on rehearing it is said:

"The third paragraph of the bill avers explicitly that there is a dispute as to the boundary line between the adjacent lands owned by the parties. There is no ground of demurrer testing the sufficiency of this averment, under Code,§ 3052, subd. 5. No question of the title to land is projected by any averment in the bill or any implication therefrom."

The bill in the instant case was drawn after a consideration of the decisions touching the question of the disputed boundary line. It avers the source from which complainant derived her title as early as 1873; that her predecessor (George D. De Priest) went into possession of the lands of complainant and so continued until the time of his death, at which time complainant acquired title to the land and has ever since been in possession of the same as the owner thereof. It is further averred that appellant, John W. Turner, for a long period has been the owner in fee simple of the 80 acres of land lying immediately east of complainant's land; that more than 30 years ago, by and with the consent of the complainant's immediate predecessor in title, the said John W. Turner built a fence on a line which said coterminous landowners agreed was the dividing line between their respective tracts of land; that after said fence was built it was treated, known, and recognized by the respective coterminous landowners, one of whom was appellant, as constituting the dividing line between their said lands, and that "it was so treated, recognized, and consented to by them continuously up until the time of the death of the said George D. De Priest"; that she (complainant) further shows that "after the death of the said George D. De Priest said fence and the line upon which the same was built [was so treated as the dividing line between said coterminous owners], said line being the same as when the fence was originally built, continued to be recognized and consented to as the agreed line between the said two 80 acres [tracts] of land by the said John W. Turner and complainant until about five or six months ago."

It is further averred that after said fence was built in manner alleged a ditch was also dug along the line where said fence was erected and along where said ditch was dug as the true division line between the two 80 acres...