Chappelear v. McWhorter

McCLELLAN, J. The defendant’s demurrer to the original bill being overruled, he appeals to review that action of the court. The original bill, in paragraphs 1 and 2, would avail of the statutory system for the quieting in equity of the title, etc., to land. Code, § 5443 et seq. Averments presenting this feature of complainant’s claim for relief were sufficient to justify .the court in refusing to sustain the general demurrer, asserting the want of equity in the bill. Moore v. Alton, 192 Ala. 261, 68 South. 326, The third paragraph of the bill avers that the lands of these parties adjoin and that there is a dispute between them as to the location of the true dividing line; and the fourth paragraph proceeded on the theory (whether well or illy pleaded not being brought into question) that defendant was engaged in damaging, if not destroying, the mineral spring on this land by constantly polluting its waters or otherwise interfering with complainant’s property rights therein. The prayers for relief, in addition to a general prayer, consisted with these several theories of right to relief. What is called in the brief the “special demurrer,” addressed to the bill as a whole, contained these grounds only: “(2) That said bill shows that the complainant has a plain, adequate, and complete remedy at law in an action of ejectment. “(3) That said bill shows that the complainant has a plain, adequate, and complete remedy at law in an action of trespass. “(4) That said bill shows that its purpose is ■to settle a disputed boundary line, and that equity has no jurisdiction of said suit, but that his remedy is at law.” Since the demurrer is addressed to the bill as a whole, error cannot be imputed to the court in overruling the demurrer, the bill possessing equity in respect of its invocation of the statutory system for quieting titles to land, etc. Code, § 5443 et seq.; 5 Mich. Ala. Dig. p. 565, p. 172, noting many decisions applicable here. Furthermore, under subdivision 5 of Code, § 3052, our courts of equity have original jurisdiction to compose disputes over boundary lines. Billups v. Gilbert, 195 Ala. 518, 70 South. 145. The decree is affirmed. Affirmed. ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur. Footnotes [1] (&wkey;>JTor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes