COLEMAN, Justice.
This is the second appeal in this case. Golden v. Rollins, 259 Ala. 286, 66 So.2d 91. The questions decided on the former appeal are not involved here.
The appellees sued appellant in a statutory action to recover twelve acres of uniform width off the east side of southeast quarter of southeast quarter of Section 8, Township 18, Range 5, west, of the Huntsville Meridian.
[642]*642After the former reversal, appellant (defendant) filed a boundary line suggestion, undertaking to describe the disputed line as claimed by him. Demurrer was sustained to appellant’s first suggestion and also to his second suggestion; whereupon, he filed his third suggestion and appellees filed replication setting out the boundary line as contended for by them.
The lands of appellees lie on the east side of the southeast quarter of the southeast quarter of Section 8, supra, and the lands of the appellant lie on the west side of the southwest quarter of the southwest quarter of Section 9 of the same township and range. The disputed line, according to the respective deeds of the parties, is a part of the section line dividing the two sections, 8 and 9, above referred to.
The land in dispute as it appears from the record is a strip 29.7 feet wide from east to west, extending north from the southeast corner of Section 8, which is also the southwest corner of Section 9, for one quarter of a mile. The case was tried on the theory that one question in dispute to be decided by the jury was the location of the true line dividing said sections; and second, the issue of adverse possession of the disputed 29.7 feet wide strip.
The jury established the boundary line as contended for by the appellees, and the defendant has appealed to this court.
The transcript contains 374 pages followed by 86 assignments of error. Appellant’s argument in brief does not clearly point out the errors insisted upon with all the certainty which might be desirable; but we proceed to consider the propositions which appear to merit discussion.
Appellant insists that error was committed in refusing the general charge with hypothesis requested by appellant under the theory that appellant had acquired title to the disputed strip by adverse possession. The evidence relating to possession of the disputed strip was in conflict, with substantial testimony supporting the contentions of both parties. Refusal of the general charge requested by appellant was not error.
Likewise, appellant’s argument that the verdict was against the preponderance of the evidence is without merit.
Appellant argues that because certain members of the jury were employees of the Tennessee Coal, Iron and Railroad Company, these jurors were disqualified in this case and appellant is therefore entitled to a new trial. It is not shown that objection to the qualification of these jurors was made on that ground prior to the motion for a new trial. Moreover, the record fails to show that T. C. I. had any interest in the lands involved in this case, the minerals thereunder, or the result of this suit. This argument is without merit.
Appellant argues that the trial judge erred to a reversal in making certain statements during the cross-examination of Mrs. Wright, a witness for appellees, and in shaking hands with this witness in the presence of the jury immediately after a recess had been declared. We are of opinion that these actions of the trial judge did not constitute reversible error.
Appellant argues that over his objection, the witness Bennett, county surveyor, was erroneously permitted to testify as to what the original government survey showed with respect to dimensions of the sections of land here involved. In support of this insistence, appellant directs our attention to assignment of error 46 only, which recites as follows:
“46. The Trial Court erred in overruling the Appellant’s objection to the following question propounded by the Appellee to the Appellee’s witness, W. B. Bennett.
“Q. Now I will ask you if you had other notes of the Government relative to Section 8 and Section 9, and if you did have other notes tell the jury what [643]*643those notes were that you had and used? (Transcript Page 8)”
The question objected to does not call for information which the government notes or other records might contain, but merely asked the witness to tell what notes he “had and used.” The objection to this question was properly overruled.
Appellant’s first boundary line suggestion described the disputed line as follows :
“Commencing at the northwest corner of the SE quarter of SE quarter of Section 8, Township 18, Range 5 West, run thence in an Easterly direction along the North boundary line of said forty 1320 feet, more or less, to a round ¿4 inch steel rod in the north boundary of said forty, for point of beginning, thence in a southerly direction along an old fence row to the north end of a barbed wire fence, thence in a Southerly direction along said barbed wire fence as the same now stands to a gulley at the south end of said barbed wire fence, thence continue in a southerly direction along a line marked by round % inch steel rods to the center of Warrior River Road, a public paved road, which point in said road is the end of said true line. Situated in Jefferson County, Alabama.”
This court has indicated that a description beginning at the true corner of a certain forty-acre subdivision described by government numbers is not on its face indefinite or uncertain.
“Of course, when the decree speaks of ‘commencing at the Northwest corner of the SW¼ of SW¼ of said Section Eighteen,’ it means, and can only mean, the true northwest corner of said forty-acre tract. Clarke v. Earnest, 224 Ala. 165, 139 So. 223. When that corner is established by a competent surveyor, as will be engaged by the sheriff, there will be no difficulty in locating and designating the strip of land. The decree in describing the tract of land is not subject to the objection of being uncertain or indefinite, as urged by appellants’ counsel.” Smith v. Simmons, 228 Ala. 393, 395, 153 So. 633, 634.
In a later case, the description of a boundary line commencing at a corner of a forty-acre subdivision was said to be sufficiently certain on its face. In that case, however, the evidence showed that the corner set out in the description was, in fact, in dispute, and such a discription was disapproved. We quote from the opinion:
“ * * * It is described in the suggestion, to paraphrase it, as commencing at the SE corner of NE¼ of NE¼, Section 2, supra, running thence north * * *.
“ * * * There seems to be some controversy about the location of the starting point, to wit: the SE corner of NE¼ of NE¼, Section 2, supra. * * *
“The description as set out in the suggestion does not indicate that there was any controversy as to the location of the corner which is the starting point. So that on its face the description as there set out is not uncertain as to the starting point. Smith v. Simmons, 228 Ala. 393, 153 So. 633. But if there is a controversy about it as where surveyors place it at different locations, it should be described in the suggestion and judgment by monuments, distances and courses and not by reference to a survey, Millican v. Mintz [260 Ala. 22, 68 So.2d 702], supra; Forrester v.
Free access — add to your briefcase to read the full text and ask questions with AI
COLEMAN, Justice.
This is the second appeal in this case. Golden v. Rollins, 259 Ala. 286, 66 So.2d 91. The questions decided on the former appeal are not involved here.
The appellees sued appellant in a statutory action to recover twelve acres of uniform width off the east side of southeast quarter of southeast quarter of Section 8, Township 18, Range 5, west, of the Huntsville Meridian.
[642]*642After the former reversal, appellant (defendant) filed a boundary line suggestion, undertaking to describe the disputed line as claimed by him. Demurrer was sustained to appellant’s first suggestion and also to his second suggestion; whereupon, he filed his third suggestion and appellees filed replication setting out the boundary line as contended for by them.
The lands of appellees lie on the east side of the southeast quarter of the southeast quarter of Section 8, supra, and the lands of the appellant lie on the west side of the southwest quarter of the southwest quarter of Section 9 of the same township and range. The disputed line, according to the respective deeds of the parties, is a part of the section line dividing the two sections, 8 and 9, above referred to.
The land in dispute as it appears from the record is a strip 29.7 feet wide from east to west, extending north from the southeast corner of Section 8, which is also the southwest corner of Section 9, for one quarter of a mile. The case was tried on the theory that one question in dispute to be decided by the jury was the location of the true line dividing said sections; and second, the issue of adverse possession of the disputed 29.7 feet wide strip.
The jury established the boundary line as contended for by the appellees, and the defendant has appealed to this court.
The transcript contains 374 pages followed by 86 assignments of error. Appellant’s argument in brief does not clearly point out the errors insisted upon with all the certainty which might be desirable; but we proceed to consider the propositions which appear to merit discussion.
Appellant insists that error was committed in refusing the general charge with hypothesis requested by appellant under the theory that appellant had acquired title to the disputed strip by adverse possession. The evidence relating to possession of the disputed strip was in conflict, with substantial testimony supporting the contentions of both parties. Refusal of the general charge requested by appellant was not error.
Likewise, appellant’s argument that the verdict was against the preponderance of the evidence is without merit.
Appellant argues that because certain members of the jury were employees of the Tennessee Coal, Iron and Railroad Company, these jurors were disqualified in this case and appellant is therefore entitled to a new trial. It is not shown that objection to the qualification of these jurors was made on that ground prior to the motion for a new trial. Moreover, the record fails to show that T. C. I. had any interest in the lands involved in this case, the minerals thereunder, or the result of this suit. This argument is without merit.
Appellant argues that the trial judge erred to a reversal in making certain statements during the cross-examination of Mrs. Wright, a witness for appellees, and in shaking hands with this witness in the presence of the jury immediately after a recess had been declared. We are of opinion that these actions of the trial judge did not constitute reversible error.
Appellant argues that over his objection, the witness Bennett, county surveyor, was erroneously permitted to testify as to what the original government survey showed with respect to dimensions of the sections of land here involved. In support of this insistence, appellant directs our attention to assignment of error 46 only, which recites as follows:
“46. The Trial Court erred in overruling the Appellant’s objection to the following question propounded by the Appellee to the Appellee’s witness, W. B. Bennett.
“Q. Now I will ask you if you had other notes of the Government relative to Section 8 and Section 9, and if you did have other notes tell the jury what [643]*643those notes were that you had and used? (Transcript Page 8)”
The question objected to does not call for information which the government notes or other records might contain, but merely asked the witness to tell what notes he “had and used.” The objection to this question was properly overruled.
Appellant’s first boundary line suggestion described the disputed line as follows :
“Commencing at the northwest corner of the SE quarter of SE quarter of Section 8, Township 18, Range 5 West, run thence in an Easterly direction along the North boundary line of said forty 1320 feet, more or less, to a round ¿4 inch steel rod in the north boundary of said forty, for point of beginning, thence in a southerly direction along an old fence row to the north end of a barbed wire fence, thence in a Southerly direction along said barbed wire fence as the same now stands to a gulley at the south end of said barbed wire fence, thence continue in a southerly direction along a line marked by round % inch steel rods to the center of Warrior River Road, a public paved road, which point in said road is the end of said true line. Situated in Jefferson County, Alabama.”
This court has indicated that a description beginning at the true corner of a certain forty-acre subdivision described by government numbers is not on its face indefinite or uncertain.
“Of course, when the decree speaks of ‘commencing at the Northwest corner of the SW¼ of SW¼ of said Section Eighteen,’ it means, and can only mean, the true northwest corner of said forty-acre tract. Clarke v. Earnest, 224 Ala. 165, 139 So. 223. When that corner is established by a competent surveyor, as will be engaged by the sheriff, there will be no difficulty in locating and designating the strip of land. The decree in describing the tract of land is not subject to the objection of being uncertain or indefinite, as urged by appellants’ counsel.” Smith v. Simmons, 228 Ala. 393, 395, 153 So. 633, 634.
In a later case, the description of a boundary line commencing at a corner of a forty-acre subdivision was said to be sufficiently certain on its face. In that case, however, the evidence showed that the corner set out in the description was, in fact, in dispute, and such a discription was disapproved. We quote from the opinion:
“ * * * It is described in the suggestion, to paraphrase it, as commencing at the SE corner of NE¼ of NE¼, Section 2, supra, running thence north * * *.
“ * * * There seems to be some controversy about the location of the starting point, to wit: the SE corner of NE¼ of NE¼, Section 2, supra. * * *
“The description as set out in the suggestion does not indicate that there was any controversy as to the location of the corner which is the starting point. So that on its face the description as there set out is not uncertain as to the starting point. Smith v. Simmons, 228 Ala. 393, 153 So. 633. But if there is a controversy about it as where surveyors place it at different locations, it should be described in the suggestion and judgment by monuments, distances and courses and not by reference to a survey, Millican v. Mintz [260 Ala. 22, 68 So.2d 702], supra; Forrester v. McFry, 229 Ala. 324, 157 So. 68, or other extraneous facts. Hopkins v. Duggar, 204 Ala. 626(5), 87 So. 103.” Godsey v. Anglin, 261 Ala. 19, 21, 73 So.2d 92, 94.
In the instant case, it might be said that the description of the disputed line as set out in appellant’s first suggestion is on its face sufficiently certain as against demurrer. The evidence does not indicate, as [644]*644we understand it, any dispute as to the location of the northwest corner of the southeast quarter of the southeast quarter of said Section 8. That corner, however, is not a point on the disputed boundary line. The description indicates that from that corner the surveyor should run 1320 feet, more or less, to a steel rod, which steel rod is the point of beginning of the disputed boundary line which appellant undertook to describe.
Plaintiffs’ Exhibit 1 in this case indicates that at or near this point of beginning of the line thus described, two three-quarter inch iron pins appear in the ground. One of these pins is shown to be located on the line claimed by appellant and the other three-quarter inch iron pin is shown to be on the line claimed by appellees. A three-quarter inch iron pipe is also shown by said exhibit to be located on the ground some 25 feet from the two iron pins. In this state of the record, we are unwilling to hold the trial court in error for sustaining the demurrer to appellant’s boundary line suggestion No. 1. If this suggestion had been permitted to go to the jury, and the jury found in favor of the appellant, a verdict and judgment describing the line as set out in that suggestion would be infected with the vice of uncertainty and indefiniteness because the surveyor or sheriff who undertook to mark the disputed line on the ground in accordance with that description would be faced with a choice between the three iron markers above referred to and would not be guided by the decree with sufficient certainty so as to determine the correct line on the land. In that situation, the judgment would be vague, indefinite and uncertain, and would render all these proceedings abortive and useless. There was no error in sustaining demurrer to appellant’s suggestion No. 1.
Appellant’s suggestion No. 2 also falls short of the certainty required in describing a boundary line.
As to a further proposition argued by appellant, however, we are of opinion that the trial court committed reversible error. Appellees offered in evidence Exhibit 2, which is a map or plat of Section 8, supra, and Exhibit 3, which is a similar map of Section 9, supra. These maps appear to have been drawn according to a survey made in 1910 and revised in 1919 by “W. H. Gwin, Ass’t. Eng’r.” This survey appears to have been made for the Tennessee Coal, Iron and Railroad Company, or U. S. Steel Corporation, in connection with ownership of mineral rights in lands in said sections. For aught that appears in the record, this was a private survey, made by these companies, or one of them, for their own purposes. W. H. Gwin did not testify and it appears probable that he was deceased at the time of the trial.
Appellant objected on the grounds that these exhibits had not been properly identified, were made by third parties, and are irrelevant, incompetent, illegal and immaterial testimony.
Nowhere does it appear that the appellant or his predecessors in title had any notice of or connection whatsoever with the survey made by Gwin or the exhibits based thereon.
Because of the admission of these exhibits in evidence and because they were allowed to go to the jury over appellant’s objection and exception, we must determine whether it was error to admit them in evidence and whether or not appellant was injured thereby.
Our cases adopt the rule that a survey and a map based thereon are admissible in evidence where the county surveyor who made the survey and the map is shown to be qualified and is personally present in court, subject to cross-examination by the opposite party, and testifies as to the correctness of his map.
“A plat or map of lands surveyed by a county surveyor is not self-prov[645]*645ing, or evidence per se, unless made upon notice to the parties, signed officially, and showing the matters prescribed by statute. Code 1923, § 10352. But the surveyor, shown to have experience as such, may testify as a witness to his survey, and its correctness, whereupon the plat may be offered in evidence in connection with his testimony. * * * ” Hill v. Johnson, 214 Ala. 194, 196, 106 So. 814, 815.
Plats of land made by a county surveyor without notice to the party against whom the plat was offered in evidence, have been held admissible in evidence for certain purposes, where the surveyor was personally present in court, testifying, and available for cross-examination. Hess v. Rudder, 117 Ala. 525, 23 So. 136; Vandiver v. Vandiver, 115 Ala. 328, 22 So. 154.
As to an ex parte survey made without notice as provided by statute to the objecting party, or his privies, the rule is different when the surveyor is not personally present for cross-examination. The rule has been stated as follows:
“ * * * Generally, private or statutory surveys are not admissible against one who, or whose privies, took no part therein, or had no notice thereof; * * 11 C.J.S. Boundaries § 114, Note 20; 9 C.J., page 284, Note 63.
“The objection, however, is, (as we understand it,) that the survey being ex parte, and not made in pursuance of an order of court, is not evidence. But the county surveyor is required by law to survey any land lying in his county, at the request of the owner. Clay’s Dig. 353. And although such survey may not within itself be evidence, yet that the surveyor may be examined to prove the boundaries, and that he may illustrate his evidence by the survey so made, we entertain no doubt; and when the surveyor, by his own testimony, has proved the accuracy of his survey, it then may go to the jury as testimony tending to prove the locality of the land and its boundaries. * * * ” Nolin v. Parmer, 21 Ala. 66, 70, 71.
“The survey of the line of the fence, attempted to he offered in evidence on behalf of the defendant below, was not made by the county surveyor, the person appointed by law to make it. Rev. Code, §§ 947, 950, 953; Dailey v. Fountain, 35 Ala. 26. It was merely an ex parte examination of the disputed line of the fence, without any notice to the opposite party. Such a survey was incompetent for any purpose, against the party not participating in it. There was no error in rejecting it.” Avary v. Searcy, 50 Ala. 54, 55, 56.
“The survey of the lands made by Barron, the county surveyor, notice of it not having been given to the appellee, was not, of itself, legal evidence. But it would be admissible, in connection with the evidence of the surveyor. * * * ” Clements v. Pearce, 63 Ala. 284, 293.
Stein v. Ashby, 24 Ala. 521, involved a map in a situation similar to the instant case. There the plaintiff “introduced a map of the City of Mobile, made by Charles Delage, who was proved to be dead, and evidence tending to show that it was generally received as a correct representation of what purported to he shown or described therein. The defendant objected to the introduction of the map on this evidence; but his obj ection was overruled, and he excepted. Evidence was also adduced by the plaintiff, tending to show that said diagram was correct, and that said creek ran as there laid down; also, that there was a mill site on the land belonging to plaintiff.”
Because of the admission of the map, this court reversed that case and, in discussing this error, said:
“The only remaining question presented upon the record, is, as to the ac[646]*646tion of the court below in admitting the map made by Charles Delage. It does not appear that this map was made either under the authority of the United States or this State; and the mere fact ‘that it was generally received as a correct representation of what purported to be shown or described therein/ amounts to no more than if his statement, not under oath, as to the same facts, had generally been believed. Upon this evidence, it was improperly admitted; and for this error, the judgment is reversed, and the cause remanded.”
The foregoing case was cited by this court in an opinion in 1929, where it was said:
“It may be added that the evidence as to the map related to the matter of identification and not its correctness, and that, under the authority of Stein v. Ashby, 24 Ala. 521, was inadmissible for this reason also.” Gulf, M. & N. R. Co. v. Pistole, 218 Ala. 695, 700, 120 So. 159, 163.
The following comment on Stein v. Ash-by, supra, applies to the maps erroneously admitted in the instant case:
“The mere fact that a map of lands made upon an unofficial survey is testified to as generally recognized as a correct representation of w it purports to show is not enough to make it admissible to show important details, even though the surveyor is known and is shown to have been competent. Such an authentication 'amounts to no more than if his statement, not under oath, as to the same facts, had generally been believed.’ Stein v. Ashby, 1854, 24 Ala. 521. In such a case, it is to be noticed, the admission is not within the usual discretion of the court as to the use of a map as a chalk, and if material is reversible error.” 9 A.L.R.2d 1083, § 19.
The jury’s verdict established the boundary line as shown on Exhibits 2 and 3. The details shown on these exhibits are strongly persuasive of the correctness of the boundary line as claimed by appellees. Although there was other evidence supporting appellees’ contentions, we cannot say the admission of these exhibits did not materially injure the appellant. For this error, the judgment must be reversed.
Other assignments of error are not sufficiently argued or probably will not arise on another trial.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, GOODWYN and MERRILL, JJ., concur.