Wood v. Foster, 5 Div. 185.

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, Justice.
Citation229 Ala. 430,157 So. 863
Decision Date30 November 1934
Docket Number5 Div. 185.
PartiesWOOD v. FOSTER.

157 So. 863

229 Ala. 430

WOOD
v.
FOSTER.

5 Div. 185.

Supreme Court of Alabama

November 30, 1934


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 [157 So. 864] 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,...

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21 practice notes
  • Howell v. City of Dothan, 4 Div. 911
    • United States
    • Supreme Court of Alabama
    • May 13, 1937
    ...de novo and judgment given as is 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. 102. This court has declared that a suit on a claim against a city brought within the time pres......
  • Branyon v. Kirk, 8 Div. 917.
    • United States
    • Supreme Court of Alabama
    • October 5, 1939
    ...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 this in equity to a jury trial. Yauger v. Tay......
  • Watt v. Lee, 7 Div. 571.
    • United States
    • Supreme Court of Alabama
    • October 5, 1939
    ...should have rendered or 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 the law that obtains, it should be observed ......
  • Bryan v. W. T. Smith Lumber Co., 4 Div. 160
    • United States
    • Supreme Court of Alabama
    • 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, We do not think anything we have said conflicts with recognized rules as to what evidence is admissible in cases of disputed bo......
  • Request a trial to view additional results
21 cases
  • Howell v. City of Dothan, 4 Div. 911
    • United States
    • Supreme Court of Alabama
    • May 13, 1937
    ...de novo and judgment given as is 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. 102. This court has declared that a suit on a claim against a city brought within the time pres......
  • Branyon v. Kirk, 8 Div. 917.
    • United States
    • Supreme Court of Alabama
    • October 5, 1939
    ...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 this in equity to a jury trial. Yauger v. Tay......
  • Watt v. Lee, 7 Div. 571.
    • United States
    • Supreme Court of Alabama
    • October 5, 1939
    ...should have rendered or 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 the law that obtains, it should be observed ......
  • Bryan v. W. T. Smith Lumber Co., 4 Div. 160
    • United States
    • Supreme Court of Alabama
    • 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, We do not think anything we have said conflicts with recognized rules as to what evidence is admissible in cases of disputed bo......
  • Request a trial to view additional results

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