
    CASE 16— SUIT BY ANN PHILLIPS AGAINST L. T. STEWART INVOLVING THE LOCATION OF THE DIVISION LINE BETWEEN THEIR ADJOINING LANDS.
    Oct. 31, 1906.
    Phillips v. Stewart
    Appeal from Rockcastle Circuit Court.;
    M. L. Jarvis, Circuit Judge.
    Judgment for defendant, plaintiff appeals
    Reversed.
    1. Boundaries — Evidence—Reputation.—In a processioning proceeding which was never perfected, certain old people living in the neighborhood were requested to locate a corner previously marked by a gate post, and from this a surveyor ran the line. Held, that, all of such citizens being dead at the time suit was brought to determine the boundary line, the surveyor was entitled to testify concerning such facts.
    2. Same — Location—Reputation—Evidence.—It is competent to prove the location of a corner or line of public survey by reputation.
    3. Same. — In a suit to establish a boundary, evidence held to require a finding that a corner formerly represented by a gate post was at the point fixed by certain aged residents, from which a surveyor established the line.
    
      i. Appeal — Theory of cause. — Where a suit in equity was transferred to the common-law docket, but the transfer was ignored both by the court and parties when it came to trial, and was tried as an equitable action, it will be so treated on appeal.
    L. W. BETHURUM AND J. W. ALCORN for appellant.
    C. C. WILLIAMS, for appellee.
   Opinion of the Court by

Judge O’Rear

Reversing.

The litigated question in this action is the true location of the boundary line separating appellant’s and appellee’s lands. The land in dispute is uninclosed, save that one or two buildings of small value have within the last few; years been built upon it by appellee. These, however, have not. been bnilt long enough to ripen into a title by possession, so. that the question is the one of the location of the lines. Appellee’s title papers recognize and call for certain corners in appellant’s line. One of the corners called for in appellant’s ancestor’s deed, more than fifty years old, was a gatepost. The next corner is a beech, and so is the next a beech. _ Two beeches were found in surveying the lines after this suit was instituted. One (the last named) is admittedly the corner designated. We think the other is established by the proof as the second corner. The true location of the point where the gatepost stood will settle all that part of the dividing line in dispute. The gatepost has long since disappeared. There is no trace of it now left. It was shown in evidence that appellant and appellee’s ancestor, from whom the latter inherited, had a dispute as to the location of the gatepost corner, as well as the first beech corner, about twenty years ago. Appellant and her husband then applied to the county court for the appointment of processioners to establish and re-mark the obliterated corner. They were appointed, and with the county surveyor met upon the ground. They had called a number of old people living in the neighborhood, who were requested, and probably sworn, to locate the old gatepost. Each of the witnesses so called stuck a stick down at the point where he remembered the post to have been. They differed some few yards. The surveyor placed his Jacob’s staff in the center of the points so selected, and from thence ran the line to the beech which was then pointed out as the next corner, and which is the one above named, referred to in the record by the witnesses as a broken top beech tree. The'magnetic degree of that course was 70 degrees E., and the distance 21% poles. The county surveyor who was present and ran the line at the time made a written memorandum of what had been done, and signed it.. .But it was not signed by the processioners, nor was it returned to the county court, as was required by statute. Appellee’s ancestor, the then owner of appellee’s land, was present at this proceeding, and seems to have acquiesced in it. On the trial of this case the surveyor who then ran the line was called as a witness, and testified to the foregoing facts, and produced the certificate which he had given at the time of processioning.- His testimony was objected to. But we think it was relevant. The old citizens who were called upon by the processioners, and upon whose statements the corners were established, are now all dead. It is competent to prove the location of a corner or line of public survey by reputation. In the nature of the thing those who marked an original corner, and who Imew personally of its location, will in time pass away, and so in some instances will the corners themselves. Such matters of common concern are discussed in the neighborhood, and are accepted and treated by those interested as being of a certain nature, so that their reputation becomes established and known of all in the community. After the death of the original witnesses and the destruction by time of the monuments marking the corner, the only thing left by which its location might be identified is the reputation established and made notorious when both witnesses and corners were in existence. It is, therefore, that the law receives the evidence of the reputation in proof of the faiet of the location of 'Sfudh dormers, anid lines as the best evidence obtainable in the nature of the case. The surveyor’s certificate was not receivable as a processioner’s report, because it did not conform to the statute concerning the processioning of land. But what was said then to the surveyor by the persons who were then before him was evidence of rep-utation of the location of the original monument and corner. One or two of the so-called processioners also testified substantially to the same facts as the surveyor did. Their testimony was likewise competent for the same reasons. Other witnesses yet living testified that they knew where the old gatepost stood, and corroborated the location made by the surveyor, William Wood. Running, thence N., 70 degrees E., 21% poles, brings the line to the brokeh top beech. This evidence outweighs, in our opinion, the conflicting and unsubstantiated statements of appellee’s witness that the gatepost was north of the point located by Wood.

Appellee contends that by beginning his line at a fence which bisects it some rods short of the corner called for in his deed, and running thence the requisite distance called for in his deed, it would carry his line to a point some rods north of the point where appellant claims the gatepost stood, and would give all the disputed land to appellee. There is no warrant for this contention. He did not own, nor did his father own, anything north of the gatepost, and though his north and south line should have begun at the cross fence, instead of south of it, it would have to stop at the gatepost, wherever that had been located.

The case was begun in equity by appellant to quiet title. It was really in ejectment. Appellee was in possession of the little storehouse and barn on the disputed territory. The cause was transferred to the common-law docket by an. order of court, but this order was ignored by the court and the parties when it came to the trial, and the case was tried as an equitable action. On appeal we treat it the same way. The weight of the evidence was on appellant’s side, and the judgment should have been accordingly.

The judgment is reversed, and cause remanded for judgment consistent herewith.  