92 Ala. 484 | Ala. | 1890
There are. suggestions in the present bill looking to relief by way of quieting, and removing a cloud from, complainants’ title to the land in controversy. But
And where the line is marked only by monuments at its terminal points — the boundary running directly between them — the destruction of these monuments under like circumstances, and consequent confusion and dispute as to the location of the line, would present a case for equitable action in fixing and declaring the boundary. In the case at bar, it is alleged that the true boundary was indicated originally both by a road or “turn row” running the whole length of the coterminous ownership, between, or on the line between, the two parcels, and by monuments standing at either end of the dine thus superficially indicated. And while it is averred that the “ turn row ” has been obliterated by the defendant, it is also alleged that the monuments standing -at either end of the boundary are still standing. Rot only so but it appears more or less clearly in the averments, and with entire clearness in the testimony, that the line between these monuments was at the time the bill was filed, and at the time of the hearing, fully marked by posts at short intervals throughout its course, these posts having supported a fence built on the line, but which, except the posts, had been removed. On the case made by complainants, therefore, there is no confusion of boundaries, no obliteration of the true line, no state of fads which renders the interposition of -chancery necessary to a determination of the line between the adjacent parcels. In like manner, fhe defendant relies upon a line as the true one between his land and that of complainants, which is also so marked and indicated by monuments as not to involve such confusion or obliteration as is essential to equity jurisdiction being exercised to its establishment. It is quite true that the two lines are not identical. On the contrary, while they have a common initial point on the eastern boundary, they strike the western line of the two parcels at points sufficiently distant from each other as to make a difference of about ten acres in the contents of either parcel; that is, if the line contended for by complainants is the true one, ten acres of the land claimed by defendant belongs to the former, and vice
We are aware 1 hat in some cases of this kind in this court a disputed title has been determined on a bill to enjoin trespasses;, but the power of 1 he court so to do does not appear to have been questioned, nor its attention drawn to the considerations to which we have adverted ; and in one of these it is said that the party complaining must show a clear legal or equitable title. In any view; they can not be considered authoritative so as now to bind us to a conclusion opposed to that stated above, and which we think is as sound in principle as it is overwhelmingly supported by the adjudications of other courts. See Bouls v. R. R. Co., 55 Ala. 480; Sullivan v. Rabb, 86 Ala. 433. Of course, if there has been an adjudication of the title at law before bill hied, this will suffice; and some effort was-made in this case towards averring and showing such prior decision here favorable to the complainants; but it is neither sufficiently averred nor proved that the question of title in controversy has ever been determined at law.
The decree below is reversed, and a decree will be entered here modifying the injunction in accordance with this opinion. The cause is remanded to the Chancery Court, where it will stand over until title to the disputed land is adjudicated at law, or until the defendant R. T. Ashurst has had reasonable time to bring his action at law and has failed to do so. “If he neglects to do this in a reasonable time, he will have no just grounds of complaint if the injunction is made perpetual against him in consequence of liis own negligence.”
The decree of the Chancellor establishing the boundary between the lands of complainants and those of defendant, and perpetually enjoining trespasses, &c., must be reversed; and this court, proceeding to render the decree the Chancery Court, should have rendered, refuses and denies any relief by way of establishing such boundary, and awards a temporary injunction.