#### WHITTLE *et al. v.*REEVES.

The testimony being insufficient to identify or locate the land lino in controversy, as described in the petition, the verdict was not supported.

No. 6218.

April 14, 1928.

Equitable petition. Before Judge Searcy. Epson superior court. July 22, 1927.

*J. R. Davis, W. M. Dallas, Ryals, Anderson & Anderson,*and *Nottingham & Nottingham,*for plaintiffs in error.

*Dairsey & Darsey, G. II. Miller,*and *Lawton Nalley,*contra.

Gilbert, J.

This suit was brought by T. J. Reeves to recover a strip of land from W. A. Whittle and others, and to establish *249a land line between the property of petitioner and properties - of defendants. The jury returned the following verdict: “We, the juror, find the ishue in this case the land line running due west from the old Homeyney senitary by the spring to be the original line dividing the Spivey land on the North, and on the South by land of A. M. Zorn, this being the same line described in deed from Mrs. A. M. Zorn to E. T. Nottingham, this being in favor of Plaintiff, T. J. Reeves. We also find in favor of the Plaintiff, T. J. Reeves, $1500.00 for timber and all damages to land.” The defendants filed a motion for new trial. On the day an amendment to the motion was approved by the judge, the plaintiff filed an acquittance of all the defendants, except W. A. Whittle and his bondsman with respect to the sum for damages. The motion for new trial contained the general grounds, and special. grounds relating to newly discovered evidence and to alleged errors in the court’s charge. It was overruled, and the defendants excepted.

1. In the second paragraph of the petition the land line is described as follows: “Beginning at a rock corner on the public road from Hootenville to Thomaston, between the J. C. Zorn Jr. residence and Old Harmony Cemetery, and running from said rock corner west by the Old Harmony Spring to Tobler Creek.” No witness testified as to the present existence of “the rock corner” or that he had actually seen it, except one who swore as follows: “I know where the rock corner was situated between those lands, and the line went west through there; it went near a spring. That is the line referred to in this deed [indicating a deed conveying 950 acres of land to Nottingham by Mrs. Zorn]. I suppose that was the southern boundary of the Spivey place.” However, this testimony does not furnish any information from which the rock corner could be located. Several witnesses testified to the effect, in substance, that the line in question ran west from near Harmony Cemetery near the spring, but none of them located it at a definite place. The surveyor who ran the line testified that he looked for, but did not find, the rock corner. It follows that there was not sufficient evidence to support the verdict, and that it was error to overrule the motion for new trial upon this ground.

*2.*It is unnecessary to deal with the other grounds of the motion (the nature of which is indicated in the statement of the case), *250as the proceedings upon which they are based are not likely to come up at a second trial.

*Judgment reversed.*

*Russell, C. J., and*Hines, *J., dissent. The other Justices concur.*