Upton v. Read

• Decision Date: 24 January 1952
• Docket Number: 7 Div. 102
• Citation: 56 So.2d 644,256 Ala. 593
• Parties: UPTON et al. v. READ.
• Court: Alabama Supreme Court

Page 644

56 So.2d 644

256 Ala. 593

UPTON et al. v. READ.

7 Div. 102.

Supreme Court of Alabama.

Jan. 24, 1952.

Ross Blackmon, Anniston, and Martin & Hinton, Gadsden, for appellants.

Wm. C. Bibb, Anniston, for appellee.

SIMPSON, Justice.

Plaintiffs sued defendant Read for cutting timber on lands allegedly owned by them. Count 1 was in debt to recover for the statutory penalty, Code 1940, Title 47, § 272, Count 2 was in trespass, and Count 3 in trover. From a verdict and judgment for the defendant the plaintiffs have appealed.

The suit arose over a disputed boundary line separating plaintiffs' forty acres on the west from the forty on the east on which defendant had authority to cut the timber. The plaintiffs derived title from their father and it was their contention on trial that, regardless of where the true line dividing these two forties was, their said ancestor and the owner of the forty on the east had agreed to a survey made by one Morton in 1931 as the division line between the properties, since which time both parties had held up to said line as the true line, under which situation the parties had acquired title by adverse possession up to said established line and a different line, which defendant contended for, could not thereafter be successfully established by a new survey, citing such well known cases as Williams v. Bedsole, 174 Ala. 125, 56 So. 567; Home Loan Co. v. Calhoun, 213 Ala. 408, 104 So. 797; and Gunn v. Parsons, 213 Ala. 217, 104 So. 390.

The fallacy of this position is that the plaintiffs' complaint was not laid under such a theory. The complaint did not describe the property on which it is alleged the timber was cut by metes and bounds, but alleged that the timber was cut on the NW 1/4 of the NE 1/4 of Section 21, Township 13, Range 7, thereby making the issue the determination, according to government survey, of the true line dividing these two government subdivisions of the quarter section. Oliver v. Oliver, 187 Ala. 340, 65 So. 373; Livingston v. Nelson, 200 Ala. 507, 76 So. 449.

The plaintiffs could have so framed their complaint as to bring into issue the question of an agreed boundary line between the two properties, but did not do so. The complaint limited recovery to timber cut by defendant on the NW 1/4 of the NE 1/4 of said section. The question then was not one of location of a boundary line between the properties as determined by the acts of the parties, as was discussed in the Bedsole and other cases, supra, but rather one of location of the dividing line between the NW 1/4 of the NE 1/4 and the NE 1/4 of the NE 1/4 of the sections; that is, the location of the subdivision line between the two forties according to the government survey setting up the section lines, corners, etc. This conclusion is attained from such cases as Alford v. Rodgers, 242 Ala. 370, 6 So.2d 409, holding to the effect that no act of the parties can relocate the section line as established by government survey, and other cases as Oliver v. Oliver, supra, and Edwards v. Smith, 240 Ala. 397, 199 So. 811, making the same principle applicable to the interior subdivision lines of a government surveyed section. The last cited case has this pertinent observation '* * * These interior subdivision lines, not surveyed or marked in the government survey, are none the less certain in legal contemplation. They are fixed and determinable by a subdivision of the section, using the four corners of the section shown on the official field notes. * * *'. 240 Ala. at page 399, 199 So. at page 813.

Illustrative also is Oliver's Case, supra. Though that case was in ejectment, the governing principle is the same. There the plaintiff sued to recover a disputed strip on the north side of the SW 1/4 of the SW 1/4 of a certain section and the defendant filed the statutory disclaimer, thereby confessing the plaintiff's possession of the described forty and alleging that he was the owner of the NW 1/4 of the SW 1/4 of said section and suggested that the suit arose out of a disputed boundary line between the said two forty-acre tracts. With regard to the issue thus presented the court, speaking through Mr. Justice Somerville, observed:

'Under the issues made by the pleadings and submitted to the jury, it was clearly not permissible for plaintiff to show title by adverse possession to any part of the N.W. 1/4 of the S.W. 1/4 of section 34. * * *

'The land sued for is described in the complaint as a part of the S.W. 1/4 of the S.W. 1/4 of the section according to the sublic survey of the government, and the sole questions at issue were where the dividing line between the subdivisions in question was properly located under that scheme of survey, and whether defendant had possession of any land south of that line.

'Plaintiff's theory of the case seems to be that any recognition by former owners of the two tracts of a 'made line,' wherever it might be, was binding upon them, although their respective deeds and titles were based on the lines of the government survey, and regardless of the absence of an adverse possession up to such line.

'This is not the law, for recognition by adjoining owners of a false line as the boundary between them is without effect, unless the party claiming beyond the true line also holds hostile possession up to the false line until the bar of the statute is complete. Even a formal agreement between them as to such a line could not,...