Morgan v. Mayor of Mobile

49 Ala. 349

Opinion

BRICKELL, J.

— When the charge was preferred against the appellant, as appears from the record, the southern boundary line of the city of Mobile was not marked by any visible monuments, and there was no recorded survey of it. It was then an ancient boundary, capable of being proved only by reputation and the user of the city authorities. This being true, the evidence offered should have been received. Whatever may be the true rule in reference to private boundaries, it is very well settled, on authority, that the territorial boundaries of public municipal jurisdictions, when they grow to be ancient, and cease to be marked by visible monuments, and there is not higher evidence of them, may be proved by general reputation. This general reputation may consist of the user of the jurisdiction ;.or of the declarations, made ante litem motam, of deceased persons, having an interest or opportunity of knowing the fact declared; or of the recollections of persons living, as to the boundary recognized by the community subject to the jurisdiction. 1 Phill. Ev. (C. & H. notes), 218, 219, note 87. Apart from these considerations, the location of a boundary is subject to parol evidence ; and when disputed, it must be left to a jury to say where it is located. Miller v. Cullum, 4 Ala. 576.

For the error in the rejection of the evidence offered, the judgment is reversed, and the cause remanded.