Opinion
5 Div. 189.
March 28, 1935. Rehearing Denied June 6, 1935.
Appeal from Circuit Court, Elmore County; F. Loyd Tate, Judge.
Jas. W. Strother, of Dadeville, and Mortimer M. Baldwin, Kingman C. Shelburne, and Bradley, Baldwin, All White, all of Birmingham, for appellant.
The words "West of the Tallapoosa River," as used in the act of 1866 creating Elmore county, mean the low-water mark on the west side of said river. Boardman v. Scott, 102 Ga. 404, 30 S.E. 982, 51 L.R.A. 178; Marine R. C. Co. v. U.S., 49 App. D.C. 285, 265 F. 437; Tallassee Falls Mfg. Co. v. State, 13 Ala. App. 623, 68 So. 805; Id., 194 Ala. 554, 69 So. 589; Doe v. Jones, 11 Ala. 63; Williams v. Glover, 66 Ala. 189; Webb v. Demopolis, 95 Ala. 116, 13 So. 289, 21 L.R.A. 62; Ensminger v. People, 47 Ill. 384, 95 Am. Dec. 495; Ware v. Hager, 126 Ky. 324, 326, 103 S.W. 283; Schurmeier v. St. Paul, etc., R. Co., 10 Minn. 82 (Gil. 59), 88 Am. Dec. 59; Union Depot, etc., Co. v. Brunswick, 31 Minn. 297, 17 N.W. 626, 47 Am. Rep. 789; Frank v. Goddin, 193 Mo. 390, 91 S.W. 1057, 112 Am. St. Rep. 493; State v. Eason, 114 N.C. 787, 19 S.E. 88, 23 L.R.A. (N.S.) 520, 41 Am. St. Rep. 811; Freeland v. Pennsylvania R. Co., 197 Pa. 529, 47 A. 745, 58 L.R.A. 206, 80 Am. St. Rep. 850; Handly v. Anthony, 5 Wheat. 374, 5 L.Ed. 113; Howard v. Ingersoll, 13 How. 381, 412, 14 L.Ed. 189, 202; Alabama v. Georgia, 23 How. 514, 16 L.Ed. 560; Henderson Bridge Co. v. Henderson, 173 U.S. 612, 19 S.Ct. 553, 43 L.Ed. 830; McFall v. Commonwealth, 2 Metc. (Ky.) 396; Pea Patch Island, 30 Fed. Cas. p. 1147, No. 18,311.
Martin, Turner McWhorter, of Birmingham, and Holley Milner, of Wetumpka, for appellee.
Equity has jurisdiction to settle a disputed boundary line between counties. Marengo County v. Wilcox County, 215 Ala. 640, 112 So. 243. The act of 1866 creating Elmore county definitely fixed its eastern boundary at the middle or thread of the Tallapoosa river. Tallassee Falls Mfg. Co. v. State, 194 Ala. 552, 69 So. 589; Elmore County v. Tallapoosa County, 221 Ala. 182, 128 So. 158; Id., 222 Ala. 147, 131 So. 552; Perkins v. Inhabitants of Oxford, 66 Me. 545; Flynn v. Boston, 153 Mass. 372, 26 N.E. 868; City of Coldwater v. Tucker, 36 Mich. 474, 24 Am. Rep. 601; People ex rel. Attorney General v. Stanford, 77 Cal. 360, 18 P. 85, 19 P. 693, 2 L.R.A. 92; Missouri v. Kansas, 213 U.S. 78, 29 S.Ct. 417, 53 L.Ed. 706; Parish of Caddo v. Parish of DeSoto, 119 La. 120, 43 So. 978; Parish of Bossier v. Parish of Bienville, 130 La. 429, 58 So. 137; Sizor v. City of Logansport, 151 Ind. 626, 50 N.E. 377, 44 L.R.A. 814; Sleeper v. Laconia, 60 N.H. 201, 49 Am. Rep. 311; Hanlon v. Hobson, 24 Colo. 284, 51 P. 433, 42 L.R.A. 502; Fulton Light, Heat Power Co. v. State, 200 N.Y. 400, 94 N.E. 199, 37 L.R.A. (N.S.) 307; Commonwealth v. Ellis, 11 Ky. Law Rep. 402; Parish of Red River v. Parish of Caddo, 118 La. 938, 43 So. 556; Gould on Waters, § 202; State v. Burton, 106 La. 732, 31 So. 291; Warren v. Thomaston, 75 Me. 329, 46 Am. Rep. 397; Trustees of Hopkins Academy v. Dickinson, 9 Cush. (Mass.) 544; Phinney v. Watts, 9 Gray (Mass.) 269, 69 Am. Dec. 288; 9 C. J. 193. By adoption of section 179 of the Code of 1923, providing that the state is divided into 67 counties, naming Elmore and Tallapoosa, the Legislature in effect readopted the act creating Elmore county with the construction placed thereon in Tallassee Falls Mfg. Co. v. State, supra, and this forecloses further controversy as to the meaning of the said act. Bennett v. Bennett, 224 Ala. 335, 140 So. 378; Spooney v. State, 217 Ala. 219, 115 So. 308; Rosser v. Sanders, 219 Ala. 327, 122 So. 340; Alabama Produce Co. v. Smith, 227 Ala. 330, 150 So. 148; 15 C. J. 945. The construction placed upon the act in Tallassee Falls Mfg. Co. v. State, supra, has become a rule of property. Board of Revenue v. Farson, 197 Ala. 375, 72 So. 613, L.R.A. 1918B, 881; 15 C. J. 947. The testimony being taken orally before the court, the decree will not be disturbed unless plainly and palpably wrong. Avant v. Avant, 207 Ala. 46, 91 So. 874; Andrews v. Grey, 199 Ala. 152, 74 So. 62. Furthermore, the decree shows a personal inspection by the court. Faught v. Leith, 201 Ala. 452, 78 So. 830; City of Roanoke v. Johnson, 229 Ala. 496, 158 So. 182. The court followed the correct procedure, and, the parties having acquiesced therein, neither can complain. Marsh v. Gragg, 228 Ala. 269, 153 So. 219; Clarke v. Earnest, 224 Ala. 165, 139 So. 223; Baldwin v. Harrelson, 225 Ala. 386, 143 So. 558; Avant v. Avant, supra.
The bill in this case was filed by the county of Elmore against the county of Tallapoosa, alleging that there is a dispute between the parties as to the location of the median line of the Tallapoosa river, adjudged by this court on an interpretation of the act of the Legislature of February 15, 1866 (Laws 1865-66, p. 484), "creating the county of Elmore out of parts of Coosa, Montgomery, Tallapoosa, and Autauga" to be the county line between the two contesting counties, in the case of Tallassee Falls Mfg. Co. v. State, 194 Ala. 554, 69 So. 589, decided June 17, 1915.
The points of dispute, as the bill alleges, are at the location of the dams of the Alabama Power Company, designated as "Martin Dam, Upper Tallassee and Lower Tallassee."
The defendant county demurred to the bill for want of equity, and the demurrer being overruled, it filed an answer denying that the median line of the Tallapoosa river was the line established by said act, and asserted that the true line was the west bank of the river at low watermark, making its answer a cross-bill, and praying that said west bank of the river be decreed to be the line between said counties established by said act.
The complainant answered the cross-bill, denying its averments and incorporating therein demurrers thereto.
The cause was heard by the court on testimony taken ore tenus, and exhibits thereto consisting of maps based on the surveys made by the power company previous to the construction of said dams, photographs, and other documents. On final hearing, the court sustained the demurrers to the cross-bill and granted relief to the complainant, locating the median line of said river at the points of dispute and appointing two competent engineers to mark the same by appropriate monuments.
The appeal is from the final decree.
The law is settled that courts of equity have jurisdiction to ascertain the location in fact of a county line fixed by legislative act, and to cause the same to be marked by permanent monuments; therefore, the demurrer to the bill for want of equity was properly overruled. Marengo County v. Wilcox County, 215 Ala. 640, 112 So. 243.
The point most stressed by appellant is that the construction of the statute creating the county of Elmore, in Tallassee Falls Mfg. Co. v. State, supra, is contrary to the express language of the act, is unsound, and should be overruled. The question considered on that appeal was purely one of law — the legislative intent as gathered from the language of the act — and the soundness of that decision has been, in effect, twice approved in the two appeals of Elmore county in the case of Elmore County v. Tallapoosa County, 221 Ala. 182, 128 So. 158, and second appeal, Id., 222 Ala. 147, 131 So. 552.
A sufficient answer to this contention of the appellant is that this construction of the act of the Legislature has stood for twenty years, and no doubt it has been acted upon by the citizens and property owners along the line, and by others interested in the acts of the respective counties, and has become a rule of property, to which the doctrine of stare decisis must be applied. That doctrine forbids that judicial decisions deliberately rendered should be set aside, "unless they are clearly wrong and violative of sound principle or social morality." Galloway Coal Co. v. Stanford, 215 Ala. 79, 109 So. 377, 378; Snider v. Burks, 84 Ala. 53, 4 So. 225; Barrett v. Brownlee, 190 Ala. 613, 67 So. 467; Herstein v. Walker, 85 Ala. 37, 4 So. 262; Lamar v. Lincoln Reserve Life Ins. Co., 222 Ala. 60, 131 So. 223.
After careful reexamination of the questions, we are not able to affirm that the interpretation of the statute by the court in Tallassee Falls Mfg. Co. v. State is not sound, and therefore we reaffirm that decision as the settled construction of the Act of February 15, 1866.
The testimony in this case is voluminous, and in some respects in sharp conflict. In addition to the fact that the witnesses were examined ore tenus in the presence of the court, the trial judge, at the insistence of both parties, made a personal inspection of the river at the several dams, and while his observations are not evidence that could be noted under chancery rule 75, and made a part of the record, such observations might well aid him in weighing the testimony and reaching a correct conclusion on the facts. Faught v. Leith et al., 201 Ala. 452, 78 So. 830; City of Roanoke v. Johnson, 229 Ala. 496, 158 So. 182.
After painstaking examination of the voluminous record, we are at the conclusion that the great weight of the evidence sustains the finding of the decree, and we deem it unnecessary and unprofitable to discuss the evidence in detail.
The appellant suggests that the decree should not have limited its findings to the three points where the dams of the power company are located. The bill did not seek to have the boundary line located and marked in its entire course along the middle of the river; nor did the respondent ask for such relief in the cross-bill. The court molded the decree to conform to the pleadings.
We find no reversible errors on the record.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.