130 Ala. 570 | Ala. | 1900
The bill in this cause as amended, after averring the ownership of the two -adjacent lots to be in the complainant and respondent, giving a -description of
The purpose of the bill was to have the court establish the true dividing line between the adjacent lands of the complainant and respondent, and to that end it prayed the api>ointment of -commissioners to ascertain, fix and mark this line. The averments of the bill clearly make a case for the interposition of a court of equity. The jurisdiction of chancery to establish disputed boundaries is ancient and well defined. And Avhile it does not arise upon any mere dispute 'as to the location of the boundary line adjoining parcels of land, or even upon a mere dispute as to such location of a confused or obliterated line, it will be exercised Avhen the obliteration or confusion has resulted from the act of the defendant in fraud of the complainant’s rights.—Ashurst v. McKenzie, 92 Ala. 484; 3 Pom. Eq. Jur., §§ 1384-85; 1 Story’s Eq. Jur., §§ 619-21; 4 Am. & Eng. Encyc. Law, (2d ed.), 839-40.
The gradual encroachment upon the lands of complainant by defendant by moving the fence Avhieh marked the line between them and thus obliterating the boundary, entitled, if proven, the complainant to a commission and, therefore, to the exercise of the power of a court of equity.—Bute v. Glamorganshire Canal Co., 1 Phillip (Eng. Chancery Rep.) 681; Boteler v. Spelman, Finch’s Rep. 96; note 2 on p. 840 of 4 Am. & Eng. Encyc. Law, (2d ed.)
We do not understand that the commission appointed by the chancellor is to determine the facts upon which the equity of the bill resits. That was a matter exclusively for his determination before he was authorized to appoint them. This he did in this ease. The duty of the commissioners was simply to go on the land, ascertain, fix and mark the line and report their action to the court. It is not necessary and indeed not proper that they should have incorporated in their report that they found, upon investigation that the respondent had encroached upon the complainant’s lot and the extent thereof, or that respondent had obliterated the line. Had they done so, it would have been impertinent and beyond the authority conferred upon hem. They very properly made no mention of these matters, but simply reported to the court the line they had established as the true boundary between the lots.
The respondent’s conduct having superinduced the necessity of. a resort by the complainant to this proceeding in order .to preserve and maintain her rights^ we think it would be highly inequitable' to require her to pay any part of the costs.
Affirmed.