Pounders v. Nix , 222 Ala. 27 ( 1930 )

Statutory action in the nature of an action of ejectment. The controversy between the parties involved only the proper location of the line, according to government survey, between W. 1/2 of N.W. 1/4, section 35, township 7, range 12 west, in Franklin county, owned by plaintiff (appellee), and E. 1/2 of N.E. 1/4, section 34, in the same township and range, the property of defendant. This was shown by the plea and replication. Both pleadings start the line between the coterminous owners, plaintiff and defendant, at the northeast corner of section 34, the same being the northwest corner of section 35. Likewise both pleadings describe the line as running south, four degrees and nine minutes east. However, the real issue between the parties relates to the use and ownership of a spring on or close to the line, and hence defendant's disclaimer — to employ the language of section 7457 of the Code to which the parties were endeavoring to accommodate their pleadings — further described the line between the two properties as "passing what is known as Taylor spring at a point where there was at the time of said survey," referring to a survey made by one Jackson, "a plank placed immediately east of or near the water edge in said spring," and more to the same effect. Plaintiff's replication, on the other hand, alleged that the "true boundary line crosses the spring, running across the middle of the spring."

Section 7457, from time to time, has been enlarged by additions to its original form, 2699 of the Code of 1886, for example. On just what considerations a jury may elect to give effect to one of two surveys purporting to start at the same point and run in the same course, or just what the statute in its present form intends, we may as well confess a measure of doubt.

In the Code of 1886, § 2699, reads as follows:

"The defendant may, in an action of ejectment, or in an action in the nature of an action of ejectment, disclaim possession of the premises sued for, in whole or in part, and, upon such disclaimer, the plaintiff may, if he so elects, take issue; and, if the issue be found for him, he is entitled to judgment as if the defendant had, in an action of ejectment, entered into the consent rule, confessing * * * or, in an action in the nature of an action of ejectment, had pleaded 'not guilty,' admitting possession."

In the present Code (1923) the section, 7457, is framed as follows:

"7457. (3843) (1533) (2699) (2963) (2614) (2213)Disclaimer of Possession. — The defendant may, in an action of ejectment, or in an action in the nature of ejectment, disclaim possession of the premises sued for, in whole or in part, and upon such disclaimer, the plaintiff may take judgment or may take issue; and if the issue be found for him he is entitled to judgment as if the defendant had, in an action of ejectment, entered into the consent rule, confessing possession as well as lease, entry and ouster, or, in any action in the nature of an action of ejectment, had pleaded 'not guilty,' admitting possession. The defendant, within pleading time, or within thirty days before the case is called for trial and after notice to the plaintiff or his attorney of record of his purpose so to do, may file his suggestion in writing that the suit arises over a disputed boundary line, in which suggestion he shall describe the location of the true line and thereupon the plaintiff shall take issue, or shall reply in writing in which replication he shall set forth his contention as to the location of the true line, and the court or jury trying the issue shall ascertain the true location of the boundary line, and judgment shall be rendered accordingly, and order the sheriff to establish and mark the true line as ascertained, and in such case the costs shall be apportioned justly and equitably. A single judgment on such issue of the location of the true boundary line shall bar another suit for the location of the same boundary line."

In Wade v. Gilmer (1914) 186 Ala. 524, 64 So. 611, 612, it was held, on the authority of adjudicated cases cited, that "the plea of disclaimer is 'an admission of plaintiff's title, with denial of defendant's possession.' * * * Under such a plea no question of title as to lands so disclaimed is litigable." But here, as in Walden v. McKinnon, 157 Ala. 291, 47 So. 874, 22 L.R.A. (N.S.) 716, and Tabor v. Craft, 217 Ala. 276, both parties are claiming title to a disputed area, the spring, and, unless the award operates on the title, it is meaningless.

Section 6465 of the Code, as amended by the act of 1923, p. 764, provides that:

"The powers and jurisdiction of circuit courts as to chancery or equity matters or proceedings shall extend —

"5. To establish and define uncertain or disputed boundary lines, whether the bill contains an independent equity or not."

And under this section, thus amended, a majority of the court held in Yauger v. Taylor, 218 Ala. 235, 118 So. 271, that the question of title by adverse possession might be tried on a bill in equity to determine a disputed boundary line. And now, in virtue of section 7457, the parties to an action of ejectment may require the court, acting in obedience to the verdict of a jury, to ascertain the true location of a boundary line and to order the sheriff to establish and mark the same. Thus, in cases of this character at least, has the ancient distinction between courts of law and equity and their separate jurisdictions disappeared. The ability of a jury intelligently to pass upon questions of disputed boundary lines may, in general, well be doubted. In this case the jury have found that a line running south from the northeast corner of section 34, the northwest of section 35, four degrees and nine minutes east, will run across the middle of the spring; but the sheriff, aided by a competent surveyor, and bound by the government survey locating the point of departure, may hereafter find that one and the same line cannot be run south, four degrees and nine minutes east, and across the middle of the spring. Then what?

The jury found "the line in question to be as set forth in the plaintiff's replication." This verdict meant that the line between sections 34 and 35 ran across the middle of the spring. This court in Nolin v. Parmer, 21 Ala. 70, held that, "as respects sections of lands, the Government of the United States have fixed their boundaries, and marked their corners and lines, and it is clear that these boundaries, thus marked and established, cannot be altered or controlled by any other survey," but that lines dividing sections into halves and quarters, if erroneous, may be corrected by running them according to law.

My suggestion is that a better judgment, more conducive to ends of right and justice, would have directed the sheriff with the aid of a skilled surveyor to run a line from the northeast corner of section 34, the same being the northwest corner of section 35 south, four degrees and nine minutes east, and report to the court how that line fell in relation to the spring. Nothing to the contrary was said in Mixon v. Pennington, 204 Ala. 347, 85 So. 562.

Assignments of error raise only questions as to rulings on evidence and the court's taxation of costs. As for the rulings on evidence, in so far as the answers sought or elicited may have tended to prove adverse possession, they were of no consequence for the reason that the pleadings on both parts, basing the rights of the parties on the government section line, excluded any issue as to title so lost or acquired, and harmless in any event, since it remains for the survey ordered by the court to answer the inquiry whether or not the line of the government survey will run across the middle of the spring. In either event the court, responding to the pleadings in this case, will give effect to the government survey. The result of the survey ordered by the court, necessarily involved in its order to the sheriff to establish and mark the line, will disclose what will be a "just and equitable" taxation of the costs which have been taxed in advance against appellant. This was error to reverse.

THOMAS, J., concurs in the foregoing opinion of Justice SAYRE.