Jones v. Elliot

Supreme Court of Alabama

Jones v. Elliot

43 So. 564, 150 Ala. 437, 1907 Ala. LEXIS 371

DecidedApril 11, 1907

StatusPublished

This text of 43 So. 564 (Jones v. Elliot) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jones v. Elliot, 43 So. 564, 150 Ala. 437, 1907 Ala. LEXIS 371 (Ala. 1907).

Pincite

Opinion

ANDERSON, J.

The only point made by the appellants for a reversal of this cause is that the trial court erred in permitting the introduction in evidence of the decree or order of the probate judge establishing the stock district in a part of beat 28, Etowah county. This district was established under Acts 1900-01, p. 170, which provides: “That whenever ten freeholders or householders in any beat or part of a beat in Etowah county shall petition,” etc. The order or declaration in question embraces a part of said beat 28, which is described by metes and bounds, and we are not prepared to say that the description is void for uncertainty, as it could be followed by any competent' surveyor, which fact was in effect proven, without objection and by appellants’ witness; but we are not called upon to pass upon the propriety of this evidence. It- is contended that the following part of the description is especially deficient: “Thence north along said range, between ranges 5 and 6, to the top of the mountain; thence along the top of the mountain in a northeasterly to the S. W. corner of the E. 1-2 of N. E. 1-4 of section 28, township 12, range 6 E.” We do not consider it indefinite. It is true that the word “range” is used in a place where “line” would probably be better, and the word “direction” is omitted where it could well appear; but any competent surveyor would take this description and go [439]*439north along the line between ranges 5 and 6 to the top of the mountain (that is, to the highest point of the mountain along said line between ranges 5 and 6), and after-reaching the top follow it in a northeasterly , direction to the southwest corner of the E. 1-2 of N. E. 1-4 of section 28, township "12, range 6 E.

It is further insisted that, if the territory is not so indefinitely described as to render the order void for that reason, it is offensive to the law, .because the lines “zigzag” to the extent of rendering it a fraud and offensive to the law. The boundaries are not straight and uniform, and that part of the beat contained in the stock law district is in a rather peculiar shape; but all territory embraced in the boundary lines is in the stock district, and they in no way disconnect any non-stock territory from the main portion. It is a separate and distinct part of the beat, containing within the boundaries nothing but what is stock-law ■ territory. If the mere zigzagging of the lines amounted to a fraud, then nature has greatly contributed thereto, as a good portion of the line follows the meahderihg of the Coosa river, Big Wills creek, and the mountain top. The law does not contemplate that the part detached from the non-stock district should be square, or that its boundary should folloAV township or section lines. There may be beats Avliich are divided into almost distinct subdivisions by small streams, public roads, railroads, mountains, or other objects long recognized as lines of demarcation, but Avhich have no regard for compass or survey, yet it might be that conditions are such that all on one side of the creek, road, railroad, or mountain would desire the stock laAv. and those on the other side would not, and Avould Avish the boundary line fixed by the road; creek, or mountain, regardless of curves or crooks, or the government survey. Again, there may be landoAvners Avhose farms would be split by putting a part in and leaving the other part out of the stock district, if the boundary line had to run straight and along section or subsection lines, notAAfithstanding all parties interested Avould Avisli to run the line so as to include or exclude his entire farm.

[440]*440There is nothing in this opinion to conflict Avith Avhat was held by this court in the case of Street v. Hooten, 131 Ala. 492, 32 South. 580. Moreover, Avhat Avas said in that case with reference to boundaries was mere dictum, and Avas so regarded by the writer and the late Chief Justice.

The judgment of the city court is affirmed.

Tyson, C. J., and ,Dowdelll and McClellan, JJ. concur.

Free access — add to your briefcase to read the full text and ask questions with AI

ANDERSON, J.

The only point made by the appellants for a reversal of this cause is that the trial court erred in permitting the introduction in evidence of the decree or order of the probate judge establishing the stock district in a part of beat 28, Etowah county. This district was established under Acts 1900-01, p. 170, which provides: “That whenever ten freeholders or householders in any beat or part of a beat in Etowah county shall petition,” etc. The order or declaration in question embraces a part of said beat 28, which is described by metes and bounds, and we are not prepared to say that the description is void for uncertainty, as it could be followed by any competent' surveyor, which fact was in effect proven, without objection and by appellants’ witness; but we are not called upon to pass upon the propriety of this evidence. It- is contended that the following part of the description is especially deficient: “Thence north along said range, between ranges 5 and 6, to the top of the mountain; thence along the top of the mountain in a northeasterly to the S. W. corner of the E. 1-2 of N. E. 1-4 of section 28, township 12, range 6 E.” We do not consider it indefinite. It is true that the word “range” is used in a place where “line” would probably be better, and the word “direction” is omitted where it could well appear; but any competent surveyor would take this description and go [439]*439north along the line between ranges 5 and 6 to the top of the mountain (that is, to the highest point of the mountain along said line between ranges 5 and 6), and after-reaching the top follow it in a northeasterly , direction to the southwest corner of the E. 1-2 of N. E. 1-4 of section 28, township "12, range 6 E.

It is further insisted that, if the territory is not so indefinitely described as to render the order void for that reason, it is offensive to the law, .because the lines “zigzag” to the extent of rendering it a fraud and offensive to the law. The boundaries are not straight and uniform, and that part of the beat contained in the stock law district is in a rather peculiar shape; but all territory embraced in the boundary lines is in the stock district, and they in no way disconnect any non-stock territory from the main portion. It is a separate and distinct part of the beat, containing within the boundaries nothing but what is stock-law ■ territory. If the mere zigzagging of the lines amounted to a fraud, then nature has greatly contributed thereto, as a good portion of the line follows the meahderihg of the Coosa river, Big Wills creek, and the mountain top. The law does not contemplate that the part detached from the non-stock district should be square, or that its boundary should folloAV township or section lines. There may be beats Avliich are divided into almost distinct subdivisions by small streams, public roads, railroads, mountains, or other objects long recognized as lines of demarcation, but Avhich have no regard for compass or survey, yet it might be that conditions are such that all on one side of the creek, road, railroad, or mountain would desire the stock laAv. and those on the other side would not, and Avould Avish the boundary line fixed by the road; creek, or mountain, regardless of curves or crooks, or the government survey. Again, there may be landoAvners Avhose farms would be split by putting a part in and leaving the other part out of the stock district, if the boundary line had to run straight and along section or subsection lines, notAAfithstanding all parties interested Avould Avisli to run the line so as to include or exclude his entire farm.

[440]*440There is nothing in this opinion to conflict Avith Avhat was held by this court in the case of Street v. Hooten, 131 Ala. 492, 32 South. 580. Moreover, Avhat Avas said in that case with reference to boundaries was mere dictum, and Avas so regarded by the writer and the late Chief Justice.

The judgment of the city court is affirmed.

Tyson, C. J., and ,Dowdelll and McClellan, JJ. concur.

Cite This Page — Counsel Stack

Bluebook (online)

43 So. 564, 150 Ala. 437, 1907 Ala. LEXIS 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-elliot-ala-1907.

Opinion

Related

Cite This Page — Counsel Stack