Lee v. Dunn, 205 Ala. 689

Lee v. Dunn

205 Ala. 689

Ala.

1921

Check Treatment

This is a bill for the establishment of a boundary line; the only averment as to this feature being found in paragraph 2, wherein it is alleged that the line between the lands of the parties is disputed by the defendant.

The bill was filed under subdivision 5 of section 3052, Code of 1907, under the theory that by virtue of this subdivision courts of equity would assume jurisdiction to establish disputed boundary lines under all circumstances, regardless of the limitations as to jurisdiction set up in the decisions of this court, among them Ashurst v. McKenzie, 92 Ala. 484,9 So. 262. Under these authorities it was well established that, in addition to a mere dispute as to the location of a confused or obliterated boundary line, there must be some ground of equitable interposition. Many of such cases are enumerated in the Ashurst Case, supra.

In the very recent case of Goodman v. Carroll, present term,87 So. 368,¹ this court has construed the above-cited subdivision as only intending to affirm in positive form the ancient jurisdiction of courts of equity, as that jurisdiction had been defined in the Ashurst Case, and elsewhere. Under this construction, therefore, it is manifest that the *Page 690 bill here did not state a case within that jurisdiction, and the assignment of demurrer for want of equity should have been sustained.

The decree is therefore reversed, and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.

¹ Ante, p. 305.