W. T. Smith Lumber Co. v. Cobb, 3 Div. 787

• Decision Date: 25 April 1957
• Docket Number: 3 Div. 787
• Citation: 266 Ala. 146,94 So.2d 763
• Parties: W. T. SMITH LUMBER COMPANY v. Ralph COBB.
• Court: Alabama Supreme Court

Page 763

94 So.2d 763

266 Ala. 146

W. T. SMITH LUMBER COMPANY v. Ralph COBB.

3 Div. 787.

Supreme Court of Alabama.

April 25, 1957.

Edwin C. Page, Jr., Evergreen, for appellant.

Ralph L. Jones, Monroeville, for appellee.

SIMPSON, Justice.

Complainant brought this suit pursuant to the provisions of § 3, Title 47, Code of 1940, to determine the boundary line between itself and respondent, coterminous landowners. The trial court established as the true line that claimed by the respondent, and complainant appeals.

It is first contended by complainant, appellant, that the trial court erred in refusing, on its motion, to order a survey of the lines as provided by § 10, Title 47, Code of 1940. Complainant offered to deposit with the register the money necessary to defray the expenses of the survey. The argument is untenable. The statute provides that a survey may be ordered when 'it appears that such survey is pertinent * * * or is essential to the proper entering of a decree * * *.'

It is not mandatory but merely directory that the court order a survey. Redden v. Otwell, 252 Ala. 653, 42 So.2d 454; Stansell v. Tharp, 245 Ala. 270, 16 so.2d 857. In the instant case the court was singularly correct in not ordering a survey inasmuch as the court concluded in favor of a well marked line claimed by the respondent as the true on the theory of adverse possession. No good purpose, therefore, would have been served by establishing boundary lines in accordance with the government survey or muniments of title.

The other and main insistence of the appellant is that the evidence was insufficient to establish in the respondent title to the disputed area by adverse possession. The case was submitted to the trial court on depositions so it will be considered de novo by this court. 2A Ala.Dig., Appeal and Error, k931(1) e., p. 248 et seq.

On a considerate study of the record in the light of the cases governing, we have concluded that the decree below was well founded. Following is a brief recital of the evidence as disclosed by the record: The respondent owned the W. 1/2 of the NW 1/4 of Section 1, Township 8 North, Range 10 East. The complainant owned the E. 1/2 of the NW 1/4 of said Section and the South 1/2 of the SW 1/4 of Section 36, Township 9 North, Range 10 West. The lines in dispute were those on the East and North of the respondent and on the West and South of the complainant. Otherwise stated, the lumber company, appellant, owned the land immediately North and East of the 80 acres owned by the appellee. The disputed lines separated these coterminous tracts. The respondent, Cobb, acquired title to his land from his mother and father by warranty deed dated January 3, 1939. This deed which was filed for record January 7, 1939, conveyed about 400 acres of which the above described 80 acres was a part. Within about 15 days after the date of said deed, the respondent employed a competent and licensed surveyor to survey and mark his lines. This surveying was accomplished within a day or so. The survey lines were clearly marked with three hacks on the trees and these line marks were plainly evident when the testimony in the case was taken about 15 years thereafter. Respondent, intending to use some of this land as a pasture, began fencing it immediately after the survey. He constructed a substantial fence on the line of the survey using mulberry, chestnut and oak posts. Along the North line of the 80 acres four strands of barbed wire were used, and this continued down on the East side of the survey line until about 150 or 200 yards before reaching the SE corner of the 80 when these wires were joined by a net wire fence extending down to the SE corner. This fence covered the entire boundary line in dispute and was erected and maintained by the respondent as a boundary line fence. One McNeil, a witness for complainant who was at the time and had been for a long period prior thereto, a woods rider or land agent for the complainant, testified that he found this surveyed line between the time the surveyor ran it and the time the fence was built; that he knew Mr. Cobb put the fence along the line of the blazes, and that it was his opinion at the time the fence was built that Mr. Cobb erected it as a boundary line fence. This fence was completed prior to February 25, 1939. Immediately after the erection of the fence, respondent began pasturing the land. Some cows he owned individually and some jointly with one Hardee. During the 8 or 9 years while the pasturing of these lands continued, he visited them about 2 or 3 times weekly. Although respondent took his cattle out of the pasture in 1944, his brother and Hardee continued to run cattle in the pasture as tenants of respondent until 1950, when he sold the timber on the land and it was cut and it became then necessary to move the cattle due to the timbering operations. In 1940 a storm blew down some trees on the property and he either logged the storm timber himself or had others to come in and help him do so. Some of this storm timber fell on the fence and tore it down, and the respondent immediately repaired it....