Southern Iron Works v. Central of Georgia Railway Co. , 131 Ala. 649 ( 1901 )

TYSON, J.-

Action of ejectment. The matter of controversy is the location of a boundary line between the lots of plaintiff and defendant situated north of Pollard street and between McDonough and Hull streets, in the city of Montgomery. The area of land involved is a strip 9 feet 6 inches, wide and three hundred feet long. The Montgomery & Eufaula Bailway Company is the source from which both parties derive their respective titles. That company owning the entire tract of land north of Pollard street, between McDonough and Hull streets, in 1882 made a deed to one Carr to a portion of it as follows: “Beginning at the northeast •corner of Pollard and McDonough streets, -from thence running north along McDonough street one hundred ■and forty-two feet, thence east three hundred feet to Hull street, thence south along Hull street one hundred and forty-two feet to north side of Pollard street, thence west along north side of Pollard street three hundred feet to the point- of beginning, together with all the improvements and appurtenances thereunto belonging.” On the 15th of June, 1883, Carr conveyed this lot, employing the identical description used in the deed to him, to the Montgomery Iron Works Company. On the 27th day of February, 1885, the Montgomery' Iron Works executed a lease by which it became the tenant of the Montgomery & Eufaula. Kailway Company, of to-wit: “All of that part of the enclosed lot now occupied by the said Montgomery Iron Works Company for a foundry and machine shop lying north of the dividing-line in said lot between the land of the said Montgomery Iron Works Company and the land of the Montgomery & Eufaula Kailway Company.”

It is shown by the record that plaintiff succeeded to the title to the lot of the Montgomery & Eufaula Kailway-Company covered by the lease, and also to its rights under the lease contract. It is also shown that defendant succeeded to the title of the Montgomery Iron Works Company of its lot and assumed the obligations of that company to pay the rent under the lease of the other lot, which it did until 1897. It will certainly not be disputed that if the strip of land in controversy lies north of the -dividing line between the two lots, that the defendant was the tenant of the plaintiff and cannot be heard to deny the latter’s title to it without first surrendering the possession of it. Counsel for defendant, appellant here, have, discussed at some length the doctrine of adverse possession, and have attempted to show that defendant has acquired title in that way. We may as well eliminate that question at once, ft is not. in the case, and, indeed, under the undisputed facts cannot- be. For if the strip of land in controversy is conveyed by the Carr deed, then plaintiff had no title and it- was not embraced in the lease. On the other hand, if it was not conveyed by the Oarr -deed, it is undoubtedly embraced in the lease and the plaintiff' is entitled to recover it.

As the line between the two lots is not definitely fixed by the -description in the lease, reference must be had to the description of the lot in the Oarr deed. It is only by making the length of the line along McDonough street 151 feet and 6 inches instead of 142 feet as fixed in the Oarr deed that this strip i-s excluded -from the operation of the -lease contract. In other words, if the defendant had been allowed to -show in the manner attempted that the north line o-f Pollard street is in fact some twelve feet north of the line of that street as actually opened up and in use -at the time of the execution of the Oarr deed and the lease, this would have embraced the strip of land in controversy in this deed and excluded it from the lease. Whether the -defendant -could be permitted to do this, in any event, we do not -decide. He certainly was not entitled to introduce the ■ statements of Schuesler and Nelson for that purpose.

In Hunnicutt v. Peyton, 102 U. S. 364, the court, speaking to this question, «aid:- “It is true that in several States of the Union decisions have been made recognizing the admissibility of declarations of deceased persons, even though they were -statements of particular facts and in regard to -mei*e private boundaries; but many of them, perhaps most of them, were admissible on other grounds, either as parts of the res gestae -or declarations of parties in possession. We think such is not the preponderant weight of decision. In Massachusetts, where the subject has been much discussed, it is held that, to be admissible, such declarations must have been made by persops in possession of land and i n the act of pointing out their boundaries. * * * We will not undertake to review the vast number of -decisions of State courts upon this -subject. It would greatly protract this opinion. Some things may -be deduced from them, which, though not universally recognized, are the conclusions to which, we think, a great majority of them lead. In questions of private boundary, declarations of particular faots> as distinguished from reputation, made by deceased persons, are not admissible unless they are made by persons who, it is shown, had knowledge of that whereof they spoke, and who were on the land, or in possession of it when the declarations were made. To be evidence, they must have been made when the declarant was pointing out or marking the boundaries or discharging some duties relating thereto. A declaration which is a mere recital of something past is not an exception to the rule that excludes hearsay evidence.” The assignment which the court sustained and for which it reversed the cause was based upon an exception to the admission in evidence of a statement of the location of the lines of the land in dispute, 'by a deceased surveyor who had located them, but was not at the time he made the statement pointing them out or marking them upon the ground or discharging other duties relating to them. — Barrett v. Kelly, ante. p. 378.

The court having properly refused to admit the statements of Schuessler and Neison, the evidence establishes, without dispute the boundaries of the lot owned by defendant to be as contended for by plaintiff, which locates the dividing- line between the two lots so as to embrace the strip in dispute in the lease contract.

In the absence of evidence to the contrary, where a street is named as a boundary in a deed, it must be taken that the parties intended the boundary to be the street as actually opened up and in use. — 4 Am. & Eng. Encyc. Law (2d eel.), 815.

The remaining point requiring our consideration relates to the validity' of the verdict of the jury, upon which the judgment is founded. It is insisted that the. verdict is void for uncertainty and, therefore, the judgment is invalid. This point was not called to the attention of the trial court by motion or otherwise as was done in Alexander v. Wheeler, 69 Ala. 342. Whatever may be the practice in this respect, it is clear1 to us, that the verdict and judgment thereon are not open to the attack made upon them when construed in connection with the 'disclaimer set forth and shown by the recitals of the judgment entry.

Affirmed.