Calvert v. BynumCalvert v. Bynum
This is a statutory action in the nature of ejectment by J. H. Calvert against J. L. Bynum.
The suit was to’ recover possession of land described in the complaint as follows: “Lots Numbers one (1), two (2), three (3), four (4), and five (5) in Block Number six (6) and also that part of Block six (6) marked on the Map of Pinehurst as 'Reserved’ according to map and survey of Pinehurst Addition to Town of Oneonta, Alabama.”
Defendant, pursuant to § 942, Title 7, Codе 1940, suggested that the suit arose over a disputed boundary line, and described the location of the line claimed by him as follows: “'Beginning аt a point 281.5 feet north of the Southeast corner of the Southeast fourth of the Southeast quarter of Section Thirty one (31), Township Twelve (12), Range 2 Two East, Running thence South 38° West, 160 feet to a corner; thence North 84°30' West 150 feet to a stake; thence South 62° West 210 feet to a stake’ such description being the line between the plaintiff and the defendant as coterminous land-owners, and the. sаme being as surveyed and platted by H. W. Brown, Comity Surveyor of Blount County, Alabama, on the 5th day of December, 1934, and being, of record in Deed Record Vol. 87, page 405, record of Deeds in the Probate Office of Blount County, Alabama.”
It is apparent that defendant’s suggestion does not involve the title, but the boundary line of the parties. The several grounds of demurrer to defendant’s plea or suggestion were properly overruled. Cox v. Cook,
After his demurrer was overruled, plaintiff filed what is termed an answer to the suggestion of boundary line dispute made by defendant. It rеads: “Now comes the Plaintiff and denies all of the material averments alleged in the suggestion of disputed boundary line filed in the above styled cause. The plaintiff avers that the lines of the property sued for are the lines as described in the complaint.” By virtue of this so-called answer the plaintiff merely took issue on the averments of the defendant’s suggestion of a boundary line dispute. The jury found in favor of the defendant and judgment was entered accordingly. The plaintiff has appealed to this court.
The mere rеpetition in brief of counsel for appellant of the assignment of an error on the record has been repeatedly held by this court not
to
amount to insistence in argument, and in such case the assignment will be regarded as waived. Ward v. Hood,
As a sample оf the argument in appellant’s brief on many of the assignments of error, we quote the following: “Under assignment subdivision ‘D’ of assignment *175 of error 7, wе think the court made manifest error in refusing to exclude the affidavit in evidence as set forth in sub-paragraph c. Under sub-paragrаph ‘e’ of assignment of error 7, the same applies in that case. We do not think that the affidavit of H. W. Hughes was admissible in evidencе in this case and as shown under sub-paragraph ‘f’ of said assignment of error 7, we think this should have been excluded on motion of the plaintiff in the court below.” This, in reality, is nothing more than a repetition of the assignment on the record, and, under the cases above cited, those assignments so treated in brief cannot be considered an insistence in argument and will be treated as waived.
The plаintiff was not entitled to the general affirmative charge. Under the pleadings in this case the issues were as follows: Were the plаintiff and defendant coterminous landowners and if so, was the boundary line between their properties as described by the defendant? That the parties are coterminous landowners is shown beyond any doubt. Even plaintiff’s witnesses so testified. The evidence is almost without dispute that for fifteen years or more the defendant had the actual, peaceable and exclusive possession of the property north of the boundary as claimed by him.
Our holding in Mintz v. Millican,
As this is a boundary line dispute, the statute, § 828, Title 7, Code 1940, to which reference is made by counsel fоr appellant as requiring color of title as an indispensable element of adverse possession in some cases, hаs no application. Spragins v. Fitcheard,
A plat or map of lands surveyed by a county surveyor is not self-proving, or evidence per se, unless made upon notice to the parties, signed officially, and showing the matters prescribed by statute. § 7, Title 56, Code 1940. But а surveyor, shown to have experience as such, may testify as a witness to' his survey and its correctness, whereupon the plat оr map may be admitted in evidence in connection with his testimony. Hill v. Johnson,
The survey of defendant’s land made in 1934 by H. W. Brown was properly admitted in evidence, Brown having testified to his experience of many years; that he was county surveyor and as such made a survey оf the lands of defendant in 1934 in accordance with defendant’s deed, which was in his possession at the time the survey was made; that the survеy was made to determine the boundaries to defendant’s land; that the survey was correct.
A party is entitled to have his theory of thе case made by the pleadings and issues presented to the jury by proper instructions. Western Union Telegraph Co. v. Smith,
Appellant’s complaint of the trial court’s action in giving defendant’s charge No. 6 is that it is abstract. We cannot agree with this contention.
The only complaint made by counsel fоr appellant as to charge No. 7 given for defendant is that it is abstract. It is abstract only in the sense that there was no evidenсe showing that defendant had color of title. But the giving of an abstract charge is not reversible error unless it is manifest from the record that the jury has been misled. Southern Home Ins. Co. v. Boatwright,
We have considered those assignments of error which have been sufficiently argued in brief and, finding no reversible error as to any of them, the judgment is affirmed.
Affirmed.