Howard v. Brannan

ANDERSON, C. J. This was the statutory action of ejectment for the recovery of the S. y2 of the S. W. % of section 17, township 1 north, of range 3 west, in Mobile county. The defendant filed a disclaimer, which meant that he did not claim any land sued for by the plaintiff, and set up, under the terms of section 3843 of the Code of 1907, that the dispute arose over a disputed boundary as to the line separating sections 17 and 18. - The plaintiff then averred that the true boundary between said [534] sections was as set out by him. The defendant took issue on this, and also averred that the true boundary line between sections 17 and 18 was as set out by him, and which differed from the line set up by the plaintiff. Therefore the one and only issue was the location of the true line, as per the government survey, between sections 17 and 18, and not of some other line that may have been fixed by adverse possession • or by the respective owners. When the true line was established between these sections by government survey, it was the only line separating the one from the other; and while the act of the parties, as to encroaching upon either side, may have ripened into title, yet it could not transfer land from one of said sections to the other. If the plaintiff claimed land beyond the line, it should have been set out as being a part of section 18; and, if the defendant claimed that he owned land beyond the proper line, he should not have disclaimed ownership or possession as to the land sued for by the plaintiff. In other words, the issue made up between the parties was not whether or not the plaintiff owned any land in section 18, or whether or not the defendant owned any of the land in section 17, as sued for by the plaintiff, but what was the true line between said sections. It may be true that neither party could be confined in ownership to the section line, if they had recognized another as the line and adversely claimed accordingly under a proper issue, but there can be but one true and correct line between the sections for the purpose of distinguishing the one from the other; and, if one encroached upon the other, the claimant might acquire title to the extent of his claim, but this could not operate to take land out of section 17 and put it in section 18.—Wade v. Gilmer, 186 Ala. 524, 64 South. 611. It is true the court held, in the case, supra, that the plaintiff, by taking issue upon the dis [535] claimer, also injected the issue of possession; but in this case there was no issue taken upon the disclaimer, and the minute entry is that issue was taken upon the issues filed February 14, 1913, and which issues so filed related only to the true boundary line between sections 1-7 and 18. The charge given for the plaintiff, which we number 1, went beyond the issue made up by the parties, and should have been refused, and the trial court committed reversible error in giving said charge. It is unnecessary to discuss the other assignments of error. The judgment of the circuit court is reversed, and the cause is remanded. Beversed and remanded. McClellan, Mayfield, and de Geaffeneibd, JJ., concur.