Wood v. Foster

Decision Date30 November 1934
Docket Number5 Div. 185.
Citation229 Ala. 430,157 So. 863
PartiesWOOD v. FOSTER.
CourtAlabama Supreme Court

Appeal from Circuit Court, Randolph County; W. B. Bowling, Judge.

Bill to establish boundary line by N.W. Foster against George W Wood. From a decree for complainant, respondent appeals.

Affirmed.

D. T Ware and D. R. Boyd, both of Roanoke, for appellant.

Hooton & Hooton, of Roanoke, for appellee.

THOMAS Justice.

The purpose of the bill was to invoke the jurisdiction of a court of equity under the provisions of the statute (Code, § 6439 et seq.) to establish an ancient and agreed dividing line between coterminous landowners.

The statute has been recently construed and applied in Yauger v. Taylor, 218 Ala. 235, 118 So. 271; Smith et al v. Cook, 220 Ala. 338, 124 So. 898; Clarke v Earnest, 224 Ala. 165, 139 So. 223; Camp v. Dunnavent, 215 Ala. 78, 109 So. 362.

It is suggested by appellant that, where the evidence is by depositions and affidavits, not given orally in open court, no presumptions are indulged as to the correctness of the findings of fact on which the decree is rested. Section 10276, subsec. 1, Code; Blair et al. v. Jones et al., 201 Ala. 293, 78 So. 69; Andrews et al. v. Grey, 199 Ala. 152, 74 So. 62; Hodge et al. v. Joy et al., 207 Ala. 198, 92 So. 171; Fies & Sons v. Lowery, 226 Ala. 329, 331, 147 So. 136; Treadaway et al. v. Hamilton, 221 Ala. 479, 129 So. 55. The evidence before the trial court has been carefully examined and so considered.

The declarations of former owners made while in possession of land, as that coterminous owners agreed upon a dividing line, and that as such owners their respective occupancies were with a knowledge of such fact, and that there were tendencies of evidence to the contrary are shown by the record. Smith v. Bachus et al., 195 Ala. 8, 70 So. 261; Treadaway et al. v. Hamilton, supra.

The effect of our recent decisions is that equity has jurisdiction to determine disputed boundary lines; that an agreement of coterminous landowners as to what is the boundary line between their lands, followed by occupancy thereunder and thereto, fixes such agreed line as their boundary, if held thereto by adverse possession of ten years; that such evidence is sufficient to establish the line so agreed upon, recognized, or acted upon, if for the period of the bar of the statute. Clarke v. Earnest, supra. In Baldwin v. Harrelson et al., 225 Ala. 386, 143 So. 558, 559, it is declared as the established rule of our cases dealing with the establishment of disputed boundary lines between coterminous landowners that because the dispute thereof is affected by adverse possession and in fact involves the title to a strip of land in dispute between the undisputed holdings of coterminous landowners "is none the less a boundary controversy and within the statutory powers of the chancery court." And this announcement was on the authority of our aforecited recent decisions.

It is alleged, and the testimony shows, that appellee derived title and was let into possession from one Hendon in 1909 and holds thereunder, and that respondent derived title from the Barretts in 1932. Complainant further alleges that respondent has attempted to advance his possession east of the old agreed turn row or made boundary line onto complainant's lands in violation of his right and the solemn agreement of the former owners establishing that line as their boundary, and that his effort is in hostility to complainant's holding by an open, peaceable, adverse, and uninterrupted possession of his land to the made or agreed line for more than ten years.

The affidavit of respondent states that the deed to him of date of December 29, 1930, was by Mary H. Barrett, Bruce Barrett and R. R. Barrett, the widow and only heirs at law of F. B. Barrett, describing the land as being 7 1/2 acres; that on September 28, 1932, he purchased the land at foreclosure sale of mortgage by R. R. Barrett and wife to Merchants' & Farmers' Bank of date of December 31, 1930, which mortgage employed like descriptive words, and that affiant appellant was informed at such sale that the area was 7 1/2 acres; that his survey thereof showed an area of 6 11/100 acres south of the road and as "bounded by the line that N.W. Foster claims is the line, but there are 7 1/2 acres to the line claimed by affiant." Such is the claim and abstract of title of the appellant.

The affidavit of appellee is to the effect that he owns 7 1/2 acres or more of land in said quarter section south of the road and east of appellant's land; that he purchased it in 1909, and went into the immediate possession, cultivating it; "that since the said respective dates of 1909 and 1912 the complainant has been in possession and control of all the land in said described 40 acres of land that lies South of the Old Road and is East of said Made Line, that affiant is informed that said Made Line was made, agreed upon by one Bud Barrett and one Bloomer Hendon prior to 1909, and that prior to 1909 Bud Barrett owned the land West of said Made Line, and the land East of said Made Line was owned by Bloomer Hendon, and that affiant purchased his said tract of land in 1909 from the said Bloomer Hendon. There has been no controversy or dispute over this Made Line being the boundary line between these two tracts of land in said SE-1/4 of the SE-1/4 that lies South of the Old Road since I have purchased and been in the control, possession and occupancy of said tract of land that lies East of said Made Line; the said hereinabove Made Line has been recognized as a boundary line between the two tracts of land in said described 40 acres of land that lie South of said Old Road, before and since the purchase of same by affiant." His evidence tends to support his contention.

There was other evidence of disinterested witnesses tending to show that the made or agreed line sought to be established by appellee, Foster, had so been...

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21 cases
  • Howell v. City of Dothan
    • United States
    • Alabama Supreme Court
    • May 13, 1937
    ... ... deemed just in the premises. Michie's Code and Code 1923, ... § 10276, subsec. (1); Wood v. Foster, 229 Ala. 430, ... 157 So. 863; Fannin v. Trotter, 215 Ala. 17, 109 So ... This ... court has declared that a suit on a claim ... ...
  • Branyon v. Kirk, 8 Div. 917.
    • United States
    • Alabama Supreme Court
    • October 5, 1939
    ... ... C., for appellants ... W. H ... Mitchell, of Florence, and Kirk & Rather, of Tuscumbia, for ... appellee ... FOSTER, ... The ... question in this case relates to the west and south boundary ... line of a lot in Tuscumbia, situated in the northeast ... Cook, 220 Ala. 338, 124 So. 898; Clarke ... v. Earnest, 224 Ala. 165, 139 So. 223; Baldwin v ... Harrelson, 225 Ala. 386, 143 So. 558; Wood v ... Foster, 229 Ala. 430, 157 So. 863; Holder v ... Taylor, 233 Ala. 477, 172 So. 761 ... There ... is no right in such a suit as ... ...
  • Watt v. Lee
    • United States
    • Alabama Supreme Court
    • October 5, 1939
    ... ... reverse the cause with direction that the lower court render ... a proper decree in the premises. Wood v. Foster, 229 ... Ala. 430, 157 So. 863; Hodge v. Joy, 207 Ala. 198, ... 92 So. 171; Code of 1923, Section 10276, Subsection 1 ... Of ... ...
  • Bryan v. W. T. Smith Lumber Co.
    • United States
    • Alabama Supreme Court
    • January 7, 1965
    ...landowners 'is none the less a boundary controversy and within the statutory powers of the chancery court.' * * *.' Wood v. Foster, 229 Ala. 430, 431, 157 So. 863, 864. We do not think anything we have said conflicts with recognized rules as to what evidence is admissible in cases of disput......
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