| Ala. | Nov 15, 1899
Lead Opinion
Defendant owned the S. W. j: of the N. E. j- of a section of land, and W. P. Gilbert owned the adjoining S. E. I of N. W, J of 'same section. Neither party claimed to own beyond the true line dividing his legal subdivision of the section from the other; but that line being unascertained and in dispute they had surveys made by the county surveyor, one Christian, who marked a surveyed line known as the Christian line. The survey was not satisfactory to the parties, and they submitted the ascertainment of the line to five persons as arbitrators, who acted as such and made an award in writing establishing the Christian line as the true line of division and containing the' following provisions: “Said A. J. Shaw is to move all his fencing on his land six feet inside of said line within 30 days, also the said W. P. Gilbert shall build all his fencing six feet inside of said line for the purpose of giving twelve feet for road or passway.” The award was signed by the arbitrators and also by defendant and Gilbert. Defendant’s fence Which, before the award, had stood on Gilbert’s side of
The arbitration appears to have been without any-written submission, and not conforming to the requirements of the statutory provisions for arbitration its validity and effect must be judged of as an arbitration at common law. The statutory provisions are necessary to be observed when the award is to be given the effect of ■a judgment. Those provisions do not supersede arbitrations according to the common law mode. — Code, § 523; Ehrman v. Stanfield, 80 Ala. 118; Payne v. Crawford, 97 Ala. 604" court="Ala." date_filed="1892-07-01" href="https://app.midpage.ai/document/payne-v-crawford-6514992?utm_source=webapp" opinion_id="6514992">97 Ala. 604.
As a general rule a submission to arbitration at common law could be made by parol— Bird v. Odum, 9 Ala. 755" court="Ala." date_filed="1846-01-15" href="https://app.midpage.ai/document/byrd-v-odem-6502912?utm_source=webapp" opinion_id="6502912">9 Ala. 755; Martin v. Chapman, 1 Ala. 278" court="Ala." date_filed="1840-01-15" href="https://app.midpage.ai/document/martin-v-chapman-6501285?utm_source=webapp" opinion_id="6501285">1 Ala. 278; Smith v. Douglass, 16 Ill. 34" court="Ill." date_filed="1854-11-15" href="https://app.midpage.ai/document/smith-v-douglass-6948303?utm_source=webapp" opinion_id="6948303">16 Ill. 34. An exception seems to have prevailed when the title to the thing in dispute could not pass by parol as in the case of the title to lands. — Smith v. Douglass, supra; Bird v. Odum, supra; Fort v. Allen, 110 N.C. 183" court="N.C." date_filed="1892-02-05" href="https://app.midpage.ai/document/fort-v--allen-3659164?utm_source=webapp" opinion_id="3659164">110 N. C. 183. The mere matter of the locating the boundary of lands, however, does not involve the title. It relates only to the limit to which the land covered by the title extends,
In Bowen v. Cooper, 17 Watts, 311, it -is said that “The statute of frauds is inapplicable to an award made under a parol submission which had nothing in view beyond the settling of a dispute as to the boundary of land and not the title of it. No right or title passes in virtue of the award; it merely fixes the boundary, and the title which existed previously becomes precisely located and limited by it.”
A valid award upon such question of boundary is binding and conclusive upon the parties to it not as transferring title not previously held, but by way of
In this case there was no complaint oí the award but the assent thereto of tile parties is expressed by the signing of their names at its foot, and as to the location of the line it was executed on the part of defendant by the removal of his fence to his side of the line and the surrender thereby of the possession he had held of a strip of land on Gilbert's side, and on the part of Gilbert by the building of his fence on his side. The award. followed by such assent thereto and by such recognition of the boundary established by it was conclusive upon them as to the extent of the lands owned by them, respectively.
The roadway does not appear to have been a subject of dispute before the arbitration. Not being embraced in the submission, the award as to it would have been void but for the assent of the parties. Their signatures to the award are evidence of such assent and of an agreement to leave space for the road which might be enforced by the appropriate remedy.
But neither the award nor the agreement created any property right or easement in favor of either party beyond his boundary line. An easement is an interest in land, and the title is said to lie in grant. It may pass by deed or dedication, or by prescription which presumes a grant. — 6 Am. & Eng. Ency. Law, p. 143, and authorities there cited. There had been no user or possession of the road as such.
The offense is created by section 5624 of the Code, which by its terms applies to fences as well as enclosures so that it was immaterial that the fence was disconnected at one end.
From what we have said it follows that the court did not err in giving the written charge requested by the State.
Errors are assigned for the refusal of the court to give charges 2, 9, 11 and 13 requested by defendant, but the bill of exceptions fails to. state whether those charges were given or refused.
Rehearing
On Rehearing.
The return to the writ of certiorari granted in this cause brings up for review rulings of the trial court on certain charges requested by and refused to the defendant which rulings did not appear in the transcript when the appeal Avas first considered.
For the refusal of charge 2 the judgment must be reversed. A probability of the defendant’s innocence is at least equivalent to a reasonable doubt of his guilt. Henderson v. State, 120 Ala. 360" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/henderson-v-state-6517828?utm_source=webapp" opinion_id="6517828">120 Ala. 360; 25 So. Rep. 236; Carr v. State, 106 Ala. 1; Winslow v. State, 76 Ala. 42" court="Ala." date_filed="1884-12-15" href="https://app.midpage.ai/document/winslow-v-state-6511937?utm_source=webapp" opinion_id="6511937">76 Ala. 42.
The remaining charges requested by the defendant were properly refused. They are bad for reasons given in the opinion heretofore rendered, where among other things it was held that under the facts disclosed the defendant’s property extended only to the boundary line established by the arbitration and that he had no easement or other property right in that part of the projected roadway which lay on Gilbert’s side of that line, and therefore no right to throw down Gilbert’s fence even though it stood Avithin six feet of the boundary line.
The judgment must be reversed and the cause remanded for another trial.