Mixon v. Pennington , 204 Ala. 347 ( 1920 )

This is the second appeal (74 So. 238¹) in a statutory action of ejectment against appellee for the recovery of a tract of land described in count 1 as "commencing at the N.W. corner of the N.W. 1/4 of N.W. 1/4 of section 31, township 1, and range 27, and running thence south 77 yards, thence east 210 yards, thence north 77 yards, thence west 210 yards to starting point," and in count 2 as follows:

"Commencing at a point on the west side of N.W. 1/4, of N.W. 1/4 section 31, township 1, range 27, where the survey made by W. R. Koonce in the year 1913 intersects the said west side of the said N.W. 1/4 of N.W. 1/4, section 31, township 1, range 27, and where Travis Mixon on this day drove down a land stob, and running thence south 77 yards, thence east 200 yards, thence north 77 yards, thence west 210 yards, back to starting point, and the land heretofore described is the same land as is described in count one of complaint."

And the count, in Code form otherwise, concluded with the averment that —

"The true dividing line between said N.W. 1/4 of N.W. 1/4, section 31, township 1, range 27, and S.W. 1/4 of S.W. 1/4, section 30, township 1, range 27, is the north boundary line of the said above-described tract of land."

For plea the defendant disclaimed possession of the premises sued for and suggested that the suit arose over a disputed boundary line. Code 1907, § 3843. There was no plea of not guilty. Plaintiff did not take issue on the disclaimer, though it became evident in the course of the trial that the dispute was as to the true location of the line between sections 30 and 31, township 1, range 27, and that, if the line were correctly located in agreement with defendant's contention, defendant was in possession of the land in controversy. Thereupon the court very properly made up the issue between the parties as one to be determined by the true location of the line between their respective quarter sections, "plaintiff owning the N.W. 1/4 of the N.W. 1/4 of section 31," etc., "and the defendant owning the S.W. 1/4 of the S.W. 1/4 of section 30," etc. It will be observed that the issue thus formulated called for the location of a line fixed by the government survey, nothing more, and that the question of title was not in issue; plaintiff waiving any claim of title that may have been acquired by adverse possession prior to defendant's entry upon the premises. Wade v. Gilmer, 186 Ala. 524, 64 So. 611.

Plaintiff's witness Merritt was a surveyor of 25 years' experience and knew the land in controversy. He testified, in substance, that, with the aid of the field notes of the government survey, commencing at the southwest corner of section 31, on the Ellicott line between Alabama and Florida, he had surveyed the section and the line in question, and his testimony tended to establish the line in accordance with plaintiff's contention. If there was error in excluding the testimony of the witness that he found a stob on the range line 12 chains north of the southwest corner, and that at the northwest corner he found nothing but the witness tree (probably the witness said "trees"), such error was rendered harmless by the witness' testimony, to be found at other places in the record, where, in response to plaintiff's questions, he entered without objection into a full detailed statement as to what he found at the two points inquired about, i. e., as to witness trees substantially as noted in the field notes.

The assignment of error which complains of the ruling of the court by which was excluded testimony of the witness that "chops," meaning "blazes," which he found along the line he followed between sections 30 and 31, indicated the original survey, was cured by the subsequent testimony of the witness to the effect desired by plaintiff.

Objection to the question put to this witness by plaintiff, "And you were running this line according to the field notes?" was sustained. This ruling is to be justified on the ground that the question was leading and asked for a conclusion of the witness.

Our preliminary statement as to the issue made up in this cause will suffice to indicate the irrelevancy of the proposed testimony of the witness George Newton that Morris White, who had once owned and lived upon the land in dispute, had cleared the land up to the Merritt line. This testimony did not tend to establish the Merritt line as identical, precisely or approximately, with the government line.

Plaintiff's testimony to the effect that at the northeast corner Koonce and Crawford did find stumps or trees at certain distances and in certain directions in accordance with the field notes, was properly excluded as hearsay. May v. Willis, 200 Ala. 583,76 So. 941. It may be further said in this connection that there was no difference between the parties, or their respective surveyors, as to the location of the northeast corner of section 31; the difference was in locating the line between the northeast and northwest corners, the divergence between their respective lines amounting to 77 yards at the range line on the west.

It was immaterial whether, accepting plaintiff's location the defendant would have 80 acres in the south half of the southwest quarter of section 30, which he owned, or that, accepting defendant's location, he would have less than 80. Sections according to the government survey, and that survey, when its lines are established, is conclusive (Nolin v. Parmer,21 Ala. 66), are not of uniform content, nor are they always square; especially is this true along the Florida line. The facts offered in evidence in this connection did not tend to establish the true location of the line in question.

Plaintiff relied on a survey by Merritt; defendant on a line surveyed by Crawford. It developed in evidence that Surveyor Koonce had located the line approximately as located by Merritt, and that Surveyor Hardwick had located the line substantially in accordance with Crawford's survey. Dave Teal, a witness for defendant, testified that he knew the line laid out by Hardwick; that along that line he had cut down some trees that had "chops" in them something like three inches deep, and had seen some stobs. He had seen the stobs within the month and also as far back as 20 years. The court does not consider that the refusal to exclude this testimony was reversible error. The witness did not pretend to be able to locate the line in dispute. His testimony only tended to show that more than 20 years previously some one had run a line practically as described in the testimony of Crawford, who had testified that he ran his line in 1899, marking it by "chops" on trees and by putting down stobs along the line of the government survey. This evidence of the witness Teal tended to support the defendant's claim that the line to which he claimed was the true, or government, line. And it was peculiarly appropriate that this testimony should be submitted to the jury because it tended to corroborate the testimony of defendant's witness Crawford, whom plaintiff had sought to discredit by testimony tending to show that he (Crawford) had run a crooked line — a line to suit his client rather than the historical fact. Yarbrough v. State, 105 Ala. 43, 54, 16 So. 758. The same and more, may be said of the testimony of this witness in reference to "chops" on a post oak at the end of a lane where Crawford said he had found "chops" such as were used in making the original government survey. This lane, according to some of the witnesses, ran along with the line claimed by defendant.

Jesse Hard, a witness for defendant, testified that he was present when both the Hardwick and the Crawford surveys were made (at different times). He was allowed, over plaintiff's objection, to testify that Crawford and Hardwick began their surveys at the same point and that they both ran the same line. This testimony would be declared incompetent according to the example of May v. Willis, supra, but for the effort to discredit the witness Crawford, the effect of which on the admissibility of corroborating evidence of this character we have already stated.

Defendant's testimony, going to show that Merritt had said his line was not right, that he had made a mistake, was competent by way of impeaching Merritt, who had testified for plaintiff.

We are unable to say that the language in which the jury returned their verdict and in which the judgment of the court established the line substantially in accordance with defendant's contention means nothing. On the contrary, our opinion is that it will afford the sheriff very plain directions for laying out the line. True, the line thus described is prolonged beyond the line in dispute, as shown by the pleadings, but so much of it as extends beyond may be put aside as of no consequence, for it cannot affect so much of the line as is properly found and described.

We have stated our consideration of the assignments of error treated in the brief with the exception of a very few, which have been determined in effect, though not by specific mention, in what has been said. Two or three of them are so obviously lacking in merit as to need no special notice. We find no error.

Affirmed.

ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.

¹ 199 Ala. 74.