Ward v. Lane

• Decision Date: 07 November 1914
• Docket Number: 486
• Citation: Ward v. Lane, 189 Ala. 340, 66 So. 499 (Ala. 1914)
• Court: Alabama Supreme Court
• Parties: WARD v. LANE.

66 So. 499

189 Ala. 340

WARD v. LANE.

No. 486

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Ejectment by J.L. Ward against Isaiah T. Lane.Judgment for defendant and plaintiff appeals.Reversed and remanded.

Espey &amp Farmer, of Dothan, for appellant.

W.L Lee, of Columbia, for appellee.

DE GRAFFENRIED, J.

This suit grew out of a dispute between two adjoining landowners as to the true boundary line between their lands, and was submitted to the jury under the plea not guilty.The evidence shows that there have been several surveys of the disputed line, and the evidence discloses that there was considerable divergence in some of the surveys.It appears that there was certainly one ancient survey made through the property.The plaintiff contends that this survey was made by the federal government--that it is, in fact, the government survey--and that the line thus run is therefore the true line.The defendant, on the other hand, claims that this survey is not the survey which was made by the federal government; that it was made not exceeding 60 years ago, and that the markings on the trees evidencing the line of this survey are not government marks.There was, on this disputed question, some evidence tending to support both the theory of the plaintiff and that of the defendant.

(1) For the purpose of showing that the predecessors of the plaintiff and of the defendant in title recognized and accepted the above ancient line as the true line, the plaintiff offered evidence tending to show that Boggs--one of the predecessors--pointed out this ancient line as the true line and that a public road was constructed along that line, with the line in the middle of the road, and that the road as thus constructed separated the land of Boggs, one of the predecessors in title, from those of Brigham, the other predecessor in title.In developing his testimony on this subject the plaintiff propounded questions to certain witnesses, which questions the trial court refused to allow, upon objection by the defendant, the witnesses to answer.These rulings of the court are made the basis of assignments of error from 1 to 18, inclusive.Conceding that the plaintiff, as to this offered testimony, brought himself within the operation of the rule declared in Payne v. Crawford,102 Ala. 387, 14 So. 854, Hunnicutt v. Peyton,102 U.S. 364, 26 L.Ed. 113, andLong v. Cummings,156 Ala. 577, 47 So. 109, we are of the opinion that the record affirmatively shows that the plaintiff obtained, from each witness to whom he propounded the questions made the basis of assignments of error from 1 to 18, inclusive, the benefit of the evidence which he desired to extract from such witness by the questions to which objections were sustained.Each of these witnesses, before he left the stand, testified to the specific fact which, by the questions above referred to, the plaintiff undertook to draw from him and place before the jury for their consideration.

Sustaining objections to questions is error without injury if it appear that the party complaining had the benefit of all evidence that could have been thereby elicited.Thomas v. State,155 Ala. 125, 46 So. 771;Pate v. State,158 Ala. 1, 48 So. 388.

The above rule may, at times, place the complaining party to some disadvantage, especially when the rulings of the trial judge may possibly indicate to the jury that he regards the evidence as inadmissible, but it is one which has been adopted by appellate courts as the rule which best subserves the administration of justice through the courts.

(2) It appears that a witness, Crawford, who qualified as an expert, made a survey of this line.While he was testifying as a witness for the plaintiff it was developed that this survey was made by him with the aid of the government field notes.The witness so testified without objection.As testing the accuracy of the survey, this witness, against the objection of the plaintiff, was permitted to testify, on cross-examination, that he did not go, in making the survey, the distance from "the northwest corner here (indicating a point on the diagram) south as indicated, or as called for by the field notes."This testimony of the witness referred to a fact within his personal knowledge.The field notes may or may not have been accurate, but if they showed certain evidences of the government survey, which were a mile apart, and the surveyor did not survey the whole mile, but only a half of it, he knew this fact, and we see no reason why he was not competent to testify to it.This evidence was relevant.

(3) It appears that a survey of this disputed line was also made by one Borland, and that a witness, Danford, was one of the chain bearers.This witness was introduced by the plaintiff for the purpose of discrediting the Borland survey, and he testified that the line which was made by the Borland survey ran through a timbered country, and that none of the trees near or upon that line bore any evidence of a government survey.The witness further testified that Borland walked down a line which bore government marks, but that his starting point was below that line, and that his survey was below that line.On cross-examination the defendant propounded to the witness the following question: "And he had his field notes with him, did he?"The plaintiff objected to the question upon the ground that it called for irrelevant, illegal, and immaterial testimony, and upon the further ground that it called for an opinion or a conclusion of the witness.The trial court overruled the objection and permitted the witness to answer the question, and we think properly so.The witness, if he knew that the surveyor had his field notes with him when he made the survey, might well tell it.The witness, however, in answering the question, stated that "he had some papers with him."

It may be that the answer was not responsive to the question, but if so, the plaintiff did not move the court to exclude the answer of the witness upon that ground, and the trial court cannot be put in error for permitting the answer to remain with the jury.The plaintiff can take nothing on account of his eleventh assignment of error.

(4) After the above evidence was brought into the casethe trial court permitted this witness, Danford, to testify that while making the survey, the surveyor consulted "the papers which he had with him."In considering the propriety of this testimony it must be remembered that the plaintiff himself put this witness on the stand and first went into a part of the details of the survey.He, himself, let down the gap and made it wide enough for the defendant to bring into the case all those acts of the surveyor which came within the res gestae of the survey.It may be that the papers were not the field notes, but this matter came up collaterally on cross-examination, and as a competent surveyor in making a survey would, before making the survey, naturally provide himself with data as an aid to him in making the survey--as copies of the field notes are in all of our probate offices subject to examination by surveyors--we think that, as indicating that the surveyor who made this survey below a line which was marked by witness trees, and...