
    177 So. 330
    HARRIS v. HARRIS.
    4 Div. 957.
    Supreme Court of Alabama.
    Nov. 11, 1937.
    Rehearing Denied Dec. 16, 1937.
    A. G. Seay, of Troy, for appellant.
    
      Walters & Walters, of Troy, for appellee.
   THOMAS, Justice.

The bill was to establish and define an uncertaifi or disputed boundary line under section 6465 of the Code.

The recent decisions of this court are reported or cited in the following cases. Treadaway v. Hamilton, 221 Ala. 479, 129 So. 55; Baldwin v. Harrelson, 225 Ala. 386, 143 So. 558; Yauger v. Taylor, 218 Ala. 235, 118 So. 271; Daniel v. Sharp, 223 Ala. 251, 135 So. 178; Guice v. Barr, 130 Ala. 570, 30 So. 563, and Smith v. Cook, 220 Ala. 338, 124 So. 898.

Both parties claim through a common source, and the road is a way of necessity. It is not a public road. The evidence shows that the two brothers agreed on the boundary line between the respective lands, as affecting the road cut into by the three forties. It was understood as and to be the boundary line between the respective lands and tracts. The trial court was without error in holding, that the boundary line was unsettled and disputed; that it should be ascertained and determined; and that the road be indicated. The trial court was also without error in decreeing that the road should be kept open. Tutwiler Coal, Coke & Iron Company v. Tuvin, 158 Ala. 657, 48 So. 79, and Malone v. Decatur C. C. Co., 211 Ala. 522, 100 So. 807.

It is unnecessary to discuss the evidence in detail. It is sufficient to say that it has been carefully considered.

The bill was not demurrable because it prayed for a settlement of the unsettled and disputed boundary line, nor for praying for the marking out and clearing up the use of the road; and to that end the court properly appointed a commission to fix the boundary line and to ascertain the length, width, and size of the road for the boundary line of the respective holdings of the two brothers between the lands.

The decree of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and BROWN, and KNIGHT, JJ., concur.  