Williams v. Bedsole

• Decision Date: 23 November 1911
• Citation: 174 Ala. 125,56 So. 567
• Parties: WILLIAMS ET AL. v. BEDSOLE.
• Court: Alabama Supreme Court

56 So. 567

174 Ala. 125

WILLIAMS ET AL. v. BEDSOLE.

Supreme Court of Alabama

November 23, 1911

Appeal from Circuit Court, Henry County; M. Sollie, Judge.

Action by S. L. Bedsole against W. F. Williams and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

H. L Martin, for appellants.

W. L Lee, for appellee.

MAYFIELD J.

This is a statutory action, in the nature of ejectment, to recover a strip of land about 70 yards wide and three-fourths of a mile in length, claimed by plaintiff to be a part of the E. 1/2 of the S.E. 1/4 and of the S.E. 1/4 of the N.E. 1/4 of section 11, township 8, range 26 E., in Henry county, Ala.

The only dispute is this boundary line between two coterminous owners; the plaintiff owning the land east of the true line and the defendants, that west of such line. This disputed boundary is the line that separates the eastern tier of forties, in section 11, from the second tier, lying just west thereof, in the same section. The line in dispute was therefore never actually run or traced in the original government survey of the public lands. It was for this reason only an imaginary line supposed to be one-fourth of a mile west of, and parallel with, the eastern boundary line of section 11, and 3 1/4 miles east of, and parallel with another line dividing the section into the east and west halves.

So far as the record shows, this line was never actually surveyed, ascertained, or marked, until the year 1891, when it was surveyed and marked by the county surveyor, at request and by consent of the coterminous owners, one of whom was the present defendant, appellant here; and the other, one Thomas, through whom the plaintiff, appellee here, claims title.

The evidence is overwhelming, if not conclusive and without substantial dispute, that this line as then surveyed and marked out was treated by the respective owners as the true boundary line. The line was from that time a real and ascertained one, and not a mere imaginary one. It was unquestionably treated as the boundary line, until the plaintiff (we must infer) had the line run by a surveyor, who probably located the line 70 yards east of the line located by the survey in 1891. The evidence as to a second survey is very meager. It is as follows: "The plaintiff then introduced W. C. Koonce as a witness, who testified as follows: The plaintiff exhibited to him a map of the land in controversy. I made said plat. I know where the 70 yards that is sued for is. The map shows the three forties known as the Bedsole forties, being 70 yards across the west side of said three forties, and it is the land in controversy. It is my judgment as a surveyor that the land in controversy belongs to the Bedsole forties, and the map shows the correct line."

This evidence was not objected to, and seems to be treated by counsel as referring to a second survey, while, as a matter of fact, it is merely testimony in the nature of expert opinion, by this witness, that the line shown on the map is the correct line. It does not show that any survey was actually made, nor, if it was made, how it was done. As counsel and the...