Taylor v. Fomby

116 Ala. 621 | Ala. | 1897

HARALSON, J.

The 1st, 2d, 3d and 4th assignments of error are without merit. That boundaries may be proved by hearsay, and by the long acquiescence of parties in a designated boundary as being the true one, is not to be questioned. Landmarks very frequently are of perishable materials, which soon decay or are destroyed. It is important, therefore, that hearsay, if pertinent and material to the issues between the parties, should be received to establish ancient boundaries.— Boardman v. Reed, 6 Peters (U. S.) 341. It is also well settled, that if one of two adjacent landowners extend his fence so as to embrace within his inclosure lands belonging to his neighbor, in ignorance of the true boundary line between them, and with no intention of claiming such extended area, but intending to claim adversely only to the real and true boundary line, wherever it may be, such possession will not be adverse or hostile to the true owner. But if the fence is believed to be the true line, and the claim of ownership is to the fence, even though the established division is erroneous, a different rule will apply, as has been held; for, in such case, there is a clear intention to claim to the fence as the true line, and the possession does not originate in an admitted possibility of a mistake.- — Alexander v. Wheeler, 69 Ala. 340; Bernstein v. Humes, 75 Ala. 244; s. c. 72 Ala. 556.

■ The evidence admitted tended to show without dispute, that the plaintiff had been in possession of the disputed premises for about thirty years ; that a fence had been built for a part of the way, upon a line established by a survey made by Joseph Curry, a county surveyor, in 1856 ; that the owners of the land in section 9, had recognized the Curry line as the true line ; that said line had been recognized by the owners on each side of the line, as the dividing line between each section, up to the time of the Jones survey in March, 1896, a period of about forty years. After a witness had so testified, the court explained to the jury, that they could only look to this testimony, if true, as a circumstance to be considered by them, together with all the other evidence in the cause, as determining where the true line had been run by the United States surveyors. This explanation placed the evidence admitted, certainly, on unassailable grounds.

2. The first charge requested by defendant, was-properly refused. The two surveys by Jones and Perry-man, both introduced in evidence to show where the line surveyed by the United States government ran, were in' conflict, and the evidence in the cause Avas altogether such as ought to have been submitted to the jury, as was done.

3. As to the second charge, Ave may appropriately repeat what has been so well said by Mr. Freeman, in his notes to the case of Heaton v. Hodges, 14 Me. 66, reported in 30 Am. Dec. 731: “As a result of the general rule already referred to, that where different parts of the description in a deed or patent conflict, those particulars which are most stable and certain, and least liable to be mistaken, are to prevail, it has been the established rule of construction, that a description of boundaries by known and visible natural and artificial monuments or landmarks, is generally to be preferred to a description by courses and distances and other measurements. A principle of law, so well and so long settled, does not require the citation of authorities to support it.” As illustrative of the various applications of this rule, numerous authorities are appended.

The learned annotator makes the further statement of the rule, that “courses and distances are the next most certain items of description, after calls for monuments, natural or artificial, to which alone they yield. — Chadburne v. Mason, 48 Me. 389. In the absence of calls for monuments, therefore, or if the monuments called for can not be -found, the courses and distances control quantity, and all other less definite terms of description.”

In establishing an original line of survey, according to the field notes used in such survey; attention is given, therefore, first to calls for natural or artificial monuments, and if these are not to be found, to courses and distances, with the variation of the needle from the true meridian as indicated for the original survey on the field notes. Pérrymanranliislineby the natural monuments indicated, and by coincident courses and distances indicated, and established it by the monuments. Curry ran his line without field notes, by setting “the compass [as is stated] so as to make the line run to meet the line exactly opposite the same section line at the north bank of the Tallapoosa river,” and his line coincided with Perry-man’s. Jones professed to run his line by calls on field notes, the same as used by Perryman. The general rule is that all disputes as to the boundaries of land are governed by the United States, surveys,- unless there is some statute of the State to the contrary; and the United States statutes make the field notes and plats of the original surveyor the primary and controlling evidence'of boundary. — Tiedeman on Real Property, § 832 ; 24 Am. & Eng. Encyc.. of Law, 1002. In this State, the lines of sections and subdivisions thereof, are to be located by the original government survey. — Code of 1886, § 84, sub-divs. 13, 14, 15, and § 832. In these surveys, north and south lines are to be run, according to the true meridian, (U. S. Stat. § 2395) ; and it has been held, that where the lines are obvious, they must be followed, though made on an assumed or wrong magnetic variation. — Bonney v. McLeod, 38 Miss. 393. And, it is only when lost lines and corners are tó be renewed, due allowance must be made for the variation of the magnetic needle from the true meridian. — Bryan v. Beckley, 12 Am. Dec. 276; Budd v. Brooke, 3 Gill, 198; s. c. 43 Am. Dec. 321. In the latter case it is said : “In changing the course to gratify a call, the line is run accordingly, .either to east or to the west, without regard to the fact, whether, from the date of the' original survey to the time of the location of the line, and variation of the needle has been to the east or to the west,”

The line in this case was run, as the evidence tends to show, by certified copies of the original field notes, and by the calls for natural monuments indicated thereon. Where that line was, was a fact to be determined by the jury from all the evidence in the case. There was no error, therefore, in the charge by the court, that the magnetic variations of the needle from the true meridian had no bearing or influence on the case. Nor was there any error in refusing charge No. 2, on the same subject, requested by the defendant.

There is no error in the record, and the judgment below is affirmed.

Affirmed.