Barron v. Chamblee

• Decision Date: 06 July 1945
• Docket Number: 15175.
• Citation: 34 S.E.2d 828,199 Ga. 591
• Parties: BARRON et al. v. CHAMBLEE.
• Court: Georgia Supreme Court

34 S.E.2d 828

199 Ga. 591

BARRON et al. v. CHAMBLEE.

No. 15175.

Supreme Court of Georgia

July 6, 1945

Syllabus by the Court.

In this case, involving a dispute as to the boundary line between two city lots, owned respectively by the plaintiff and one of the defendants, the plaintiff contended that a line had been established by agreement, while the defendants denied that any such agreement had been made, and asserted other defenses, including acquiescence for more than seven years in the line claimed by them. The jury found a verdict for the plaintiff, and the defendants excepted to the overruling of their motion for a new trial as amended. Held:

The evidence authorized the verdict, and consequently there was no error in refusing a new trial on the general grounds.

Nor did any of the special grounds, complaining of the admission of testimony over objection, excerpts from the charge of the court, and an omission to charge show cause for a reversal.

R. W. Smith, Jr., and E. C. Brannon, both of Gainesville, for plaintiffs in error.

Hammond Johnson, of Gainesville, for defendant in error.

On May 31, 1938, Mrs. Dorothy Booth Chamblee filed suit against L. O. Barron, alleging that the plaintiff was the owner of a described lot situated on East Washington Street in the City of Gainesville, upon which the defendant is trespassing 'and is now seeking to build and erect a fence.' The plaintiff prayed for injunction and general relief. The petition was amended by adding Mrs. L. O. Barron as a party defendant. Thereafter the defendants filed a joint answer, in which it was disclosed that Mrs. Chamblee and Mrs. Barron were coterminous landowners, and that the real matter in controversy was the location of the boundary line between their respective lots. The answer alleged, that the defendant Mrs. Barron had attempted to construct a fence 'within one inch' of the line of the plaintiff, but that no part of said fence was being constructed on the plaintiff's lot, and that it 'was all on the property of the defendant.' The answer further alleged: 'that the line between the plaintiff and the defendant is plainly marked and has been for more than twenty years. The line has been acquiesced in by all adjoining land owners for a period of more than twenty years, and during said twenty years, the said land line has not been contested by the plaintiff, or her predecessors in title, and defendants have been in the open, notorious, peaceable, exclusive, and uninterrupted possession thereof during said time.'

At the beginning of the trial, the attorneys entered into the following stipulation: 'It is stipulated by consent of all parties that Mrs. Dorothy Booth Chamblee, the plaintiff, and Mrs. L. O. Barron, one of the defendants, are coterminous proprietors or owners of the tracts of land involved in this case, and that they claim under a common grantor, Mrs. Emma L. Watkins--we have agreed that counsel on either side may use records where the original documents would be admissible--the issue in the case is the line between the two pieces of property, and that is the sole issue as we understand it.' The case was tried on January 19, 1940, when the jury returned a verdict in favor of the plaintiff. The defendants' motion for a new trial, based on the usual general grounds, and several special grounds added by amendment, was overruled on February 17, 1945, and to this judgment the defendants excepted.

On the trial, several witnesses besides the parties themselves were introduced. Documentary evidence, including deeds, was also introduced on each side. It appears from the evidence that the lots were situated on the south side of East Washington Street, and Mrs. Barron's lot was situated west of the lot of Mrs. Chamblee; in other words, the line in controversy would be the east line of Mrs. Barron's lot and the west line of Mrs. Chamblee's lot.

It appears from the record that the dispute as to the dividing line arose in April, 1938, when Ernest Adams, a contractor, was about to begin construction of a dwelling house for the plaintiff on her lot. At that time, Mrs. Chamblee had merely bargained for this lot, the legal title being in her father-in-law, J. T. Chamblee, who later conveyed the land to her. Adams testified that he undertook to survey the dividing line, and found a strip about two feet wide that did not come within the deeds to either lot; that he explained the situation to Mr. and Mrs. Chamblee and Mr. Barron, and asked Mr. Chamblee and Mr. Barron 'to come and show me where to put it, and wherever they said put it, I could legally survey and put up a corner.' He further testified: 'As well as I remember, after we were all there I asked them to place the pin and call it the line, and Mr. Barron took the pin after he and Mr. Chamblee had discussed it and put it up--I don't know just exactly what was said then--he held the pin up. Mr. Barron held the pin up and I drove it down. As to whether we drove any other, we went back on the back side and found an old post and drove a pin there where both Mr. Barron and Mr. Chamblee agreed. This was a steel shaft approximately two feet or thirty inches long, about one-half inch in diameter--an old shaft I think from the mill. I drove it down flush with the ground--

the top of it. I put it there where they showed me. Mrs. Barron was present. As to what, if anything, she said about it, at the time it was all friendly and I thought it was over.'

J. T. Chamblee, father of Russell Chamblee and father-in-law of the plaintiff, Mrs. Dorothy Booth Chamblee, testified in part as follows: 'Russell's wife was there when the line was agreed on, and Mr. and Mrs. Barron were there. Yes, the first thing Mrs. Barron told me was that the hedge and fence along there was the line. She did not contend it when we agreed on the line. As to whether she told me to put the stake there, she was there and saw it done. She was not objecting to it to me. She may have objected to Mr. Barron. She did not to me. I don't remember I heard her object to Mr. Barron. It seemed to me she agreed to it. She did not mention the fence, she said the hedge was the line. She did not keep on objecting. I suggested that we send over and get Mr. Barron and his deeds and measure it all over. I did not hear her tell Mr. Barron when we put the stake there she did not agree to it. As to whether I ever heard her agree to it, she was around and saw it all done and I never heard any objection.'

Russell Chamblee testified: 'He [Ernest Adams] turned and says, 'Mr. and Mrs. Barron is that agreeable to you?' As to which one answered, Mrs. Barron nodded her head, and Mr. Barron held the pin there and no objections at all were made either way. Yes, sir, I was just a witness, it did not belong to me. I was taking a right smart interest in it, because my wife was going to buy it. She did not know anything about it, she was leaving it up to my father. She did not own the land, or neither did I. Certainly I know whether Mrs. Barron heard what was said. The whole group was in five or six feet. As to whether I know if her hearing is good, I know she could hear all right then, I don't know how her hearing is now. I know she heard what was said when he was talking.'

There was additional evidence to the same general effect. The witness Adams further testified: 'The next day after the pin was put in,' the defendant L. O. Barron came up and brought the pin and told the witness he was not considering that line. Mr. and Mrs. Barron both testified that they did not agree on the line, and that Mr. Barron did not hold the pin or stake at the time it was driven into the ground by Adams; that it was held and driven by Adams; and that neither of them took any part in what was done. They contended and testified that the line between the two lots was marked by a wire fence which ran lengthwise through a hedge, and that this line had been recognized as the dividing line for many years. There was additional evidence, oral and documentary, tending to support their contention.

Judge A. C. Wheeler, sworn in rebuttal as a witness for the plaintiff, testified that he was familiar with the property, and had been for many years; that he knew when the hedge and fence were put there; that they did not represent any dividing line; but that one who owned the property before it was divided and sold off into lots placed them there to keep out cattle, and not to divide one lot from another.

BELL Chief Justice.

1. The special grounds of the motion for new trial will be referred to herein according to the numbering in the amendment to the motion.

Ground 4 alleged error in admitting over objection the following testimony of the witness Adams:

'Q. Did they agree on a line? A. Yes, sir.'

'Q. What line is that? A. The west line of the property.

'Q. What line is that? A. Barron east line.

'Q. What do you mean by that--which line is that? A. That is the line agreed on there and at the steel pins put down there.'

The ground of objection was, that the testimony amounted to a conclusion of the witness, without any facts upon which it could be based.

Ground 5 alleged error in admitting over similar objection the following testimony of Russell Chamblee: 'With reference to that deed to my wife's lot, it went to the point agreed on by Mr. Barron and my father, and then right to that pin, 47 feet--47 feet frontage. Yes, sir, that line was agreed there between Mr. Barron and Mrs. Barron and my father that day.'

Grounds 4 and 5, being of the same nature, will be considered together. We need not determine whether the testimony in either instance stated a mere conclusion. Compare Smith v. Satilla Pecan Orchard & Stock Co., 152 Ga. 538(2), 110 S.E. 303; Skipper v. Alexander, ...