EX PARTE TAYLOR, 1990773 (Ala. 12-14-2001)

Ex parte James R. Taylor, Sylvia Ann Taylor, and Karin Wilson. (In re: James R. Taylor et al. v. Joshua Lee).

No. 1990773.Supreme Court of Alabama.
Decided December 14, 2001.

Appeal from Shelby Circuit Court, CV-96-185; Court of Civil Appeals, 2980651.

On Application for Rehearing
WOODALL, Justice.

APPLICATION OVERRULED.

Houston, Brown, Harwood, and Stuart, JJ., concur.

Moore, C.J., and See and Lyons, JJ., dissent.

Johnstone, J., dissents from the order overruling the application for rehearing and withdraws his dissent issued on September 21, 2001, and substitutes the attached dissent therefor.

JOHNSTONE, Justice (dissenting).

I concur in Justice Lyons’s dissent. I add a few observations of my own.

The effect of the main opinion will be that any party who wants a jury trial on a boundary-line dispute will either join it with a trespass claim or will file a counterclaim in trespass. In the case before us, the trial judge followed the correct procedure and sequence. He first decided the boundary-line dispute. This equity-issue decision determined who owned the property. He then relegated the trespass claim to the jury for it to decide the nonequity issues of whether the nonowners had trespassed upon the property and, if they had trespassed, how and how much they had trespassed and what damages should be assessed. We should affirm.