Oliver v. Oliver , 187 Ala. 340 ( 1914 )

SOMERVILLE, J.

The trial court properly allowed the defendant to withdraw his plea of not guilty, and to file the disclaimer with suggestion that the real is sue in the case was a disputed boundary line.—Bernstein v. Humes, 60 Ala. 582, 597, 31 Am. Rep. 52.

In the disputed boundary suggestion there was incorporated some unessential statements of fact, which however, were properly treated as surplusage, and not vitiatory of the suggestion.

Under the issues made by the pleadings and submitted to the jury, it was clearly not permissible for plaintiff to show title by adverse possesion to any part of the N. W. % of the S. W. % of section 34. See Wade v. Gilmer, 186 Ala. 524, 64 South. 611.

The land sued for is described in the complaint as a part of the S. W. % of the S. W. % of the section according to the public survey of the government, and the sole questions at issue were where the dividing line between the subdivisions in question was properly located under that scheme of suiwey, and whether defendant had possession of any land south of that line.

Plaintiff’s theory of the case seems to be that any recognition by former owners of the two tracts of a “made line,” wherever it might be, was binding upon them, although their respective deeds and titles were based on the lines of the government survey, and regardless of the absence of an adverse possession up to such line.

This is not the law, for recognition by adjoining owners .of a false line as the boundary between them is without effect, unless the party claiming beyond the true line also holds hostile possession up to the 'false line until the bar of the statute is complete. Even a formal agreement between them as to such a line could not, of itself, vest title in one of them beyond the true line to which each actually owns. Certainly it could not have the effect of transferring one part of a government survey 40 to the 40 just below it, although acquiescence in such a line would prima facie indicate its verity.— Cooper v. Slaughter, 175 Ala. 211, 57 South. 477, 480 (10).

The several charges requested by plaintiff on the erroneous theory above noted were properly refused as being foreign to the issues involved. If plaintiff was claiming title to any part of the N. W. % of the S. W. % by adverse possession—having no title by deed—she should have included it by some appropriate description in the subject-matter of her complaint. The boundaries of a subdivision of the government survey are fixed by that survey, and, when the nomenclature of that survey is used, it must thus be interpreted. The issues here submitted to the jury required them to determine a subdivision line of the government survey, and none other.

Charge 2 was properly refused. It is not enough that an issue is supported by “the weight of the evidence”; but the weight of the evidence must reasonably satisfy the jury. Moreover, plaintiff’s “possession of the land sued for” was not in issue; the real question being whether defendant was in possession of it.

Those assignments of error based on the theory that the cross-examination of a witness must be confined to the matters elicited on direct examination are without merit. Such is the rule in some jurisdictions; but the practice is otherwise here.—Huntsville, etc., Co. v. Corpening, 97 Ala. 681 (5), 12 South. 295; Barlow v. Hamilton, 151 Ala. 634, 638, 44 South. 657.

Several of the assignments are based on the admission of relevant evidence over general objections, or refusal to exclude answers in the absence of proper objections to the questions. Error cannot be predicated on such rulings.

In illustrating lines and localities to the jury by means of a diagram of a land section, counsel may have a competent witness to locate them on the diagram, and the conversation allowable between them for that purpose must be left to the discretion of the trial judge. There was no error in this regard.

On cross-examination of defendant, plaintiff’s counsel brought out the fact that defendant bought this land from Benj. Graham. Thereafter there was no error in the admission of the deed from Graham, even had plaintiff seasonably objected to it.

In the recent case of Wade v. Gilmer, 186 Ala. 524, 64 South. 611, we ruled that a verdict on the statutory suggestion of disputed boundary did not sufficiently respond to the issue by merely designating a named surveyor’s line as the true boundary; and it was held that a judgment on such a verdict was erroneous, if not wholly void.

The verdict here exhibited is subject to the same criticism; but, as it embraced also a finding for defendant on his disclaimer, and as no objection has been made by plaintiff to either the verdict or the judgment on that account, we cannot reverse the judgment therefor.

Section 3843 of the Code, authorizing an issue to determine disputed boundaries, provides that:

“The court * * * shall render judgment accordingly and order the sheriff to establish and mark the true line, found by the jury, and in such case, apportion the cost justly and equitably.”

This refers to the cost of establishing and marking the true line, and not to the costs of the suit.

The trial court did not err in taxing plaintiff; with the costs.

We find no error prejudicial to plaintiff, and the judgment will be affirmed.

Affirmed.

Anderson, C. J., and McClellan and Sayre, JJ., concur.