Foshee v. Kay

72 So. 391 | Ala. | 1916

ANDERSON, C. J.

(1-4) Section 1053 of the Code of 1907 provides for the incorporation of municipalities by application to the probate judge of the county, and, among other things required, is that the petition shall have attached thereto and as a part thereof an accurate plat of the territory proposed to be embraced within the corporate limits. The attaching of an accurate map, as provided by the statute, was held to be essential to the jurisdiction'of the probate judge to act in the matter, in the case of State, ex rel. Allen v. Town of Phil Campbell, 177 Ala. 204, 58 South. 905. It was held also that the attaching of an inaccurate plat, or one that was void on its face, would not be a compliance with the statute. There the plat attached was void upon its face, as there was no definite description of the territory proposed to be incorporated or marks or calls of identification so as to locate the property intended to be embraced. The plat in the instant case does not possess such infirmities, but sets up the sections, townships, range, and county and certain other marks, calls, and objects which would enable an identification and location of the territory to be embraced, even if the township and range was not given. It is agreed, however, that the description set out upon the margin of the plat is erroneous in placing the territory in township -20 instead of 21, and the appellant contends that the plat was therefore inaccurate, and that the probate judge was without jurisdiction to proceed in the matter. This was an error, of course, but, according to our view, the said error is corrected by the plat itself, and the said plat, when taken in its entirety and aided by judicial knowledge, should be so construed as locating the territory in township 21, and not township 20, and, said error being so corrected, the plat was, to all intents and purposes, an accurate description of the territory embraced therein, and was a substantial compliance with the statute. The statute does not mean that the plat must be so accurate as not to permit immaterial errors, but it is complied with if it is substantially correct, and so defines or displays the territory as to enable its location and discloses the boundaries and topography with a reasonable degree of certainty. Here we have a plat disclosing the boundaries of the territory as per a sürvey, with the starting point disclosed, setting up the sections and containing therein certain objects of identification, to wit, the Mobile & Ohio Railroad and the Southern Railroad, the course and direction of same as traversing the defined territory, and also disclosing the crossing of said railroads within the bounds of said described territory. We think that this court has judicial knowledge of the fact that the crossing of the Mobile & Ohio Railroad and the Southern Railroad in Chilton county is in township 21 and not township 20. This fact is disclosed by many records and memorials of which this court takes judicial knowledge, such as state and county maps and the general surveys of the state. It is therefore apparent, upon the face of the plat, aided by judicial knowledge as to the location of the railroad crossing in question, that it discloses an intention to incorporate the territory there set up as including this railroad crossing, certain parts of the tracks, the depots, etc., and that the location o.f^th^prqppsed municipality in township 20 was an error, not orfty apparent upon the plat, with the aid of judicial knowledge, but that said error was corrected by the plat, when taken and considered in its entirety. — Chambers v. Ringstaff, 69 Ala. 140. The plat sets out the sections and the railroad crossings, and the same cannot be anywhere in Chilton county except in township 21. In other words, apart from judicial knowledge as to the township in which these railroads cross, there is not a competent surveyor who would locate the territory in township 20, or who would not locate or find the town in township 21. Suppose a plat located the territory as being in certain sections in Montgomery county immediately east of the Alabama river, but placed it in a township which was six miles or further from the river, would this court hesitate in holding that the error was self-correcting and in placing the same in the township, which contained those parts of the sections immediately east of the river in the only township in which this could be so located ? We think not. As to the method of construing deeds, we are not concerned, and whether the rule here adopted should apply to deeds we do not decide, as we are not dealing with conveyances, but with a plat showing the location of an existing village or community seeking to be incorporated, and which locates beyond doubt the territory embraced, notwithstanding it is erroneously placed in township 20 instead of 21.

(5) The petition in question was signed by not less than 25 persons purporting to be qualified electors residing within the limits of the proposed municipality. Section 1053 provides that: “Proof of the residence and qualifications as voters of the petitioners shall be made to the judge of probate, by affidavit, or otherwise, as he may direct.”

The order of the probate judge recites that these facts appeared to -the satisfaction of the court; and, while it does not say that proof of the fact was made, we think that this judicial ascertainment was by proof of some kind, and the character of which was discretionary with the probate judge, and that the failure of the order to recite that proof was made, or how it was made, was not fatal to the incorporation.

(6) We do not think that the orders as found on pages 7 and 26 of the original record and page 27 of the supplemental record are void for uncertainty or because not specifically dated. In the first place, being judicial in character, we would assume that they were made at the proper time, the contrary not appearing, but we think that the date of the orders could be referable to the date immediately preceding the same.

(7) Section 1058, among other things, authorizes the judge of probate, for fraud or other material irregularities, to set aside either of said elections and. order another one, and the points made against the incorporation growing out of any irregularities as to the election were foreclosed by the finding of the judge that that the election was regular and valid. — Phil Campbell Case, supra.

(8) We are not impressed with the theory upon which this case was tried in the lower court, and as presented by counsel for appellees, that the error as to the township was a latent ambiguity, subject to explanation by parol evidence. — Donehoo v. Johnson, 120 Ala. 438, 24 South. 888; Guilmartin v. Wood, 76 Ala. 204. As we view the plat, there was no latent ambiguity, simply an error or mistake on the face of same, when resort is had to common knowledge in connection therewith, and which said mistake or error was self-correcting, and while the trial, court erred in permitting parol evidence to explain or qualify the plat, it was error without injury, as the court could have well found that the plat was so accurate as to locate and describe the territory in question and complied with the statutory requirement.

The judgment of the circuit court is affirmed.

Affirmed.

McClellan, Sayre, and Gardner, JJ., concur.