Opinion
7 Div. 180.
May 12, 1921.
Appeal from Circuit Court, Cherokee County; W. W. Harralson, Judge.
J. A. Bilbro and Dortch, Allen Dortch, all of Gadsden, for appellant.
The demurrer for want of equity should have been sustained. Section 5 of section 3052, Code 1907; 204 Ala. 269, 85 So. 386; 6 May. 91; 195 Ala. 518, 70 So. 145; 153 Ala. 38, 45 So. 580; 202 Ala. 31, 79 So. 367. Counsel discuss other matters, with citation of authority, but in view of the opinion it is not deemed necessary to here set them out.
Hugh Reed and C. B. Sims, both of Center, for appellees.
The bill does not raise a question of title, but simply the true location of the line, and therefore it is a question of law under construction of the instruments of the title. 22 Ala. 699; 204 Ala. 85, 85 So. 396; 186 Ala. 524, 64 So. 611.
This is a bill for the establishment of a boundary line; the only averment as to this feature being found in paragraph 2, wherein it is alleged that the line between the lands of the parties is disputed by the defendant.
The bill was filed under subdivision 5 of section 3052, Code of 1907, under the theory that by virtue of this subdivision courts of equity would assume jurisdiction to establish disputed boundary lines under all circumstances, regardless of the limitations as to jurisdiction set up in the decisions of this court, among them Ashurst v. McKenzie, 92 Ala. 484, 9 So. 262. Under these authorities it was well established that, in addition to a mere dispute as to the location of a confused or obliterated boundary line, there must be some ground of equitable interposition. Many of such cases are enumerated in the Ashurst Case, supra.
In the very recent case of Goodman v. Carroll, present term, 87 So. 368, this court has construed the above-cited subdivision as only intending to affirm in positive form the ancient jurisdiction of courts of equity, as that jurisdiction had been defined in the Ashurst Case, and elsewhere. Under this construction, therefore, it is manifest that the bill here did not state a case within that jurisdiction, and the assignment of demurrer for want of equity should have been sustained.
Ante, p. 305.
The decree is therefore reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.