The bill in this cause as amended, after averring the ownership of the two -adjacent lots to be in the complainant and respondent, giving a -description of *573each, alleges that the respondent “has at various times moved the line between said lots of your oratrix and the said Stella D. G-uice and [it] now encroaches on complainant’s lot. That in moving 'the same, the true boundary line between said lotsi has become confused and uncertain and that the same has been moved against the objection of your oratrix. That the line was formerly marked by a division fence, but that the said Stella D. Guice has moved the fence at various times so that- the original line has become obliterated and the same is now in confusion and uncertainty. * * * The partition fence having been so frequently moved by said Stella D. Guice in fraud of the rights of your oratrix, the true boundary line has become confused, uncertain and obliterated, and so far as your oratrix is able to ascertain, unknown.”
The purpose of the bill was to have the court establish the true dividing line between the adjacent lands of the complainant and respondent, and to that end it prayed the api>ointment of -commissioners to ascertain, fix and mark this line. The averments of the bill clearly make a case for the interposition of a court of equity. The jurisdiction of chancery to establish disputed boundaries is ancient and well defined. And Avhile it does not arise upon any mere dispute 'as to the location of the boundary line adjoining parcels of land, or even upon a mere dispute as to such location of a confused or obliterated line, it will be exercised Avhen the obliteration or confusion has resulted from the act of the defendant in fraud of the complainant’s rights.—Ashurst v. McKenzie, 92 Ala. 484; 3 Pom. Eq. Jur., §§ 1384-85; 1 Story’s Eq. Jur., §§ 619-21; 4 Am. & Eng. Encyc. Law, (2d ed.), 839-40.
The gradual encroachment upon the lands of complainant by defendant by moving the fence Avhieh marked the line between them and thus obliterating the boundary, entitled, if proven, the complainant to a commission and, therefore, to the exercise of the power of a court of equity.—Bute v. Glamorganshire Canal Co., 1 Phillip (Eng. Chancery Rep.) 681; Boteler v. Spelman, Finch’s Rep. 96; note 2 on p. 840 of 4 Am. & Eng. Encyc. Law, (2d ed.)
*574What we have said necessarily disposes of the demurrer and the motion to dismiss the bill for want of equity adversely to the appellant. It only remains to be determined whether the complainant lias established the allegations of her bill, its equity being denied by the answer. Every material fact testified to by complainant and her witnesses is positively denied by the respondent and her witnesses. The evidence is in hopeless and irreconcilable conflict. The testimony offered by complainant tends strongly to support the averments of her bill of the obliteration of the line by moving the fence and other monuments marking the true boundary, by the respondent’s husband, who is shown to have acted for her; while that of the respondent tends to sho w that she only repaired the fence and that it is on the same line that it has always been. After a careful review of the testimony, we concur with the chancellor in his finding of fact in favor of the complainant and in his appointment of commissioners to establish the obliterated line.
We do not understand that the commission appointed by the chancellor is to determine the facts upon which the equity of the bill resits. That was a matter exclusively for his determination before he was authorized to appoint them. This he did in this ease. The duty of the commissioners was simply to go on the land, ascertain, fix and mark the line and report their action to the court. It is not necessary and indeed not proper that they should have incorporated in their report that they found, upon investigation that the respondent had encroached upon the complainant’s lot and the extent thereof, or that respondent had obliterated the line. Had they done so, it would have been impertinent and beyond the authority conferred upon hem. They very properly made no mention of these matters, but simply reported to the court the line they had established as the true boundary between the lots.
The respondent’s conduct having superinduced the necessity of. a resort by the complainant to this proceeding in order .to preserve and maintain her rights^ we think it would be highly inequitable' to require her to pay any part of the costs.
Affirmed.