66 So. 499 | Ala. | 1914
This suit grew out of a dispute between two adjoining landowners as to the true boundary line between their lands, and was submitted to the jury under the plea not guilty. The evidence shows that there have been several surveys of the disputed line, and the evidence discloses that there was considerable divergence in some of the surveys. It appears that there was certainly one ancient survey made through the property. The plaintiff contends that this survey was made by the federal government — that it is, in fact, the government survey — and that the line thus run is therefore the true line. The defendant, on the other hand, claims that this survey is not the survey which was made by the federal government; that it was made not exceeding 60 years ago, and that the markings on the trees evidencing the line of this survey are not government marks. There ivas, on this disputed question, some evidence tending to support both the theory of the plaintiff and that of the defendant.
(1) For the purpose of showing that the predecessors of the plaintiff and of the defendant in title rec
Sustaining objections to questions is error without injury it it appear that the party complaining had the benefit of all evidence that could have been thereby elicited.—Thomas v. State, 144 Ala. 125, 46 South. 771; Pate v. State, 158 Ala. 1, 48 South. 388.
(2) It appears that a witness, Crawford, who qualified as an expert, made a survey of this line. While he was testifying as a witness for the plaintiff it was developed that this survey was made by him with the aid of the government field notes. The witness so testified without objection. As testing the accuracy, of the survey, this witness, against the objection of the plaintiff, was permitted to testify, on cross-examina.tion, that he did not go, in making the survey, the distance from “the northwest corner here (indicating a point on the diagram) south as indicated, or as called for by the field notes.” This testimony of the witness referred to a fact within his personal knowledge. The field notes may or may not have been accurate, but if they showed certain evidences of the government survey, which were a mile apart, and the surveyor did not survey the whole mile, but only a half of it, he knew this fact, and we see no reason why he was not competent to testify to it. This evidence was relevant.
(3) It appears that a survey of this disputed line was also made by one Borland, and that a witness, Dan-ford, was one of the chain bearers. This witness was introduced by the plaintiff for the purpose of discrediting the Borland survey, and he testified that the line which was made by the Borland survey ran through a timbered country, and that none of the trees near or upon that liné bore any evidence of a government survey. The witness further testified that Borland
It may be that the answer was not responsive to the question, but if so, the plaintiff did not move the court to exclude the answer of the witness upon that ground, and the trial court cannot be put in error for permitting the answer to remain with the jury. The plaintiff can take nothing on account of his eleventh assignment of error.
(4) After the above evidence was brought into the case the trial court permitted this witness, Danford, to testify that while making the survey, the surveyor consulted “the papers which he had with him.” In considering the propriety of this testimony it must be remembered that the plaintiff himself put this witness on the stand and first went into a part of the details of the survey. He, himself, let down the gap and made it wide enough for the defendant to bring.into the case all those acts of the surveyor which came within the res gestse of the survey. It may be that the papers were not the field notes, but this matter came up
The general rule seems to be that all acts done and all words spoken pending the doing of a particular act, which tend, in any way, to illustrate or give character to the act, are receivable in evidence as a part of the res gestae of the act.—Terry et al. v. Williams, 148 Ala. 468, 41 South. 804; Western Union Tel Co. v. Manker, 145 Ala. 418, 41 South. 850.
(5) Complaint is made in briefs of counsel for appellant of the action of the trial judge in permitting the defendant to testify that a certain settlement road
(6) There is nothing in the contention of appellant that the trial judge committed reversible error in permitting the defendant to testify that if the line is where the plaintiff claims it is, then that the plaintiff has 49 74/100 acres in his 40-acre tract, and the defendant, only 31 16/100 acres in his 40-acre tract. If a man knows how many acres there are in a given tract of land, we see no reason why he may not testify to his knowledge of the. fact. This evidence tended to show that the line between the two 40-acre tracts is not where the plaintiff contends that it is. Our sections were laid off into tracts of 640 acres each, and while the acreage in our sections may slightly vary, such variations as above indicated are altogether unusual; and there is nothing in this evidence tending to show that the defendant’s land is situated in a section in which any one of its 16 subdivisions could have contained only 31 16/100 acres of land. If such evidence had existed the plaintiff would no doubt have produced it and thus put an end to this dispute.
(7) During the examination of a witness, Crawford, who testified on behalf of the plaintiff, it developed that when he made Ms survey —Crawford was a surveyor — No once, who was also a surveyor, made a survey. At a later period it also* developed that one Thompson, also an expert surveyor, was present when
(8) The fact that the court permitted the witness, Graves, to testify that Killebrew, when he surveyed the line, made a survey at the instance of three people, was of no possible injury to appellant. The witness testified, in substance, that before Killebrew reached the plaintiff’s land, he was surveying for the plaintiff’s son-in-law, and then that: “I think Mr. Ward (the plaintiff) got him' to run the section line between Boggs and Brigham, and that Mr. Boggs got him to run out the Boggs 40.”
The “line between Boggs and Brigham” and “the Boggs 40” were matters of importance in this case, and as the- plaintiff himself had Killebrew, as a part of the survey which was made for 'the 'son-in-law, to run the line- between him and Brigham, the identical line in
(9) We have already said that there were numerous lines run by' various surveyors in the effort to settle the dispute which existed between the parties to this suit with reference to the line between their properties. One of these surveys Avas, as already stated, made by a man by the name of Thompson, who testified in the case. Thompson made a map showing the line which he testified was the true line, and his map, along Avith maps made by other surveyors, was introduced in evidence.
Thompson qualified as an expert, and as such expert was permitted to state that, in his opinion, a certain “corner” Avas a “government corner,” and that certain trees were “witness trees.” A competent surveyor should certainly have a peculiar knowledge as to the original markings which Avere made by the surveyors for the government, and for that reason his opinion as to whether a particular- “corner” or a particular tree which he had personally examined is or is not a “government corner,” or a tree designated by the government surveyors as a “witness tree,” should not be Avith■out weight when such questions become of value in a trial. We also- think that it was entirely competent for this expert to explain to the jury how and Avhere he obtained his starting point, and how and where he ran his line. We also think that beyond doubt his map was properly a matter to go before the jury for their consideration. We, therefore, find that the trial court committed no error in its rulings on the evidence avIií ch Avas adduced through the witness, Thompson.
The above verdict was insufficient to- support a judgment..—Wade v. Gilmer, 186 Ala. 524, 64 South. 611. The trial court, had no right to supplement the verdict by adding thereto the map, and that part of the judgment can be treated as nonexistent. It can be stricken upon motion of either party at any time, and the judgment rendered by the court is therefore helpless to perform the functions for which it was rendered. — Wacle v. Gilmer, sibpra. The appellee is therefore in such a position that he cannot complain of a reversal of the judgment. The former trial has been abortive of practical results, and the judgment of the trial court must, under the rule laid down in Wade v. Gilmer, supra, be reversed, and the cause remanded to the trial court in order that another trial may be had.
(12) In the above opinion we have not undertaken to discuss all of the questions presented by the bill of exceptions as to the rulings of the trial court on the admission of evidence. We have undertaken, in the discussion which we have given to such rulings, how- ■ ever, to express our views as to the course which should be pursued on the next trial.
Reversed and remanded.