Burgin v. Pickron

• Decision Date: 05 March 1948
• Docket Number: 31864.
• Citation: 47 S.E.2d 195,76 Ga.App. 803
• Parties: BURGIN et al. v. PICKRON.
• Court: Georgia Court of Appeals

47 S.E.2d 195

76 Ga.App. 803

BURGIN et al. v. PICKRON.

No. 31864.

Court of Appeals of Georgia, Division No. 1.

March 5, 1948

Judgment Adhered to April 1, 1948.

Syllabus by the Court.

The evidence did not support the verdict for the plaintiff and the court erred in overruling the defendant's motion for a new trial.

Lamar Pickron sued R. F. Burgin, B. M. Garrett and B. A. Garrett for damages for cutting and removing timber from land claimed by the plaintiff. The jury found for the plaintiff. Defendant's motion for new trial was overruled and they excepted.

The land involved is on lot 335 in the 7th district of Baker County. According to plats introduced in evidence lot 335 is supposed to contain 250 acres, although land lots sometimes vary by having more or less than the usual acreage. It appears that the plaintiff and the defendants claim to own the entire lot; the plaintiff having a deed to 170 acres in the south side of the lot, and the defendants having a deed to 80 acres off the north side of the lot. The timber was cut on a tract of land estimated to contain from about 14 acres to 35 acres near the dividing line between the lands of the respective parties. The location of this dividing line determines the ownership of the timber.

A. H Gray, of Blakely, for plaintiffs in error.

P. Z. Geer, of Colquitt, and A. L. Miller and Miller & Miller, all of Edison, for defendant in error.

PARKER Judge.

The burden was on the plaintiff to show title to the land upon which the alleged trespass was committed, or that he was in actual possession thereof. Ault v. Meager, 112 Ga. 148, 37 S.E. 185; Clower v. Maynard, 112 Ga. 340, 37 S.E. 370; Jones v. Cliett, 114 Ga. 673, 676, 40 S.E. 719; Downing v. Anderson, 126 Ga. 373, 55 S.E. 184; Alaculsy Lumber Co. v. Gudger, 134 Ga. 603(2), 68 S.E. 427.

The plaintiff contends that he acquired title to the land in dispute by acquiescence for seven years in the line as now claimed by him, by predecessors in title of the plaintiff and the defendants, under the rule that 'acquiescence for seven years, by acts or declarations of adjoining landowners, shall establish a dividing line.' Code, § 85-1602. He mainly relies on testimony of a witness that 'the old hedge row and fence was recognized by Charlie Ivey (a former owner of one-half interest in the 170 acres) and R. F. Ivey (a former owner of the 80 acres) as the line.' But these parties do not appear to have been adjoining landowners at any time. The record shows that C. R. (Charlie) Ivey acquired the 170 acres along with his brother, R. D. Ivey, under the will of their mother, on October 6, 1919; whereas R. F. Ivey, who at one time owned the 80 acres, died sometime prior to September 16, 1911, on which date his widow sold the 80 acres to the Garretts. Furthermore, it does not appear that acquiescence, if shown, continued for a period of seven years as required by the statute. 'Acquiescence by conduct for a period of time less than seven years will not suffice to establish a dividing line between adjoining landowners by virtue of Civil Code 1910, § 3821.' McAleer v. Glover, 146 Ga. 369(2), 91 S.E. 114; Sapp v. Odom, 165 Ga. 437(6), 141 S.E. 201. The witness who testified to acquiescence in a dividing line between Charlie Ivey and R. F. Ivey also testified that 'Charlie and R. D. Ivey were supposed to own the mill pond, and R. F. Ivey owned north of them, north of the mill pond and creek. * * * Charlie and R. D. Ivey owned all of the mill property. Florzelle's (R. F. Ivey) property was north of this line, his lands came down to this mill property, Ivey's Mill Creek. * * * He owned the land north of the mill property.' This witness also testified on cross examination that 'Charlie Ivey and R. D. Ivey had the land on the south side of the creek; they stayed on the south side of the creek and R. F. Ivey sayed on the north side of the creek.' There was evidence that a fence, as referred to by the witness, had been erected many years ago across lot 335 close to and generally parallel with a straight line across the lot. Another witness for the plaintiff testified that the father of B. M. and B. A. Garrett, who at one time owned with his sons the 80 acres, admitted that their land went 'about to the fence.'

We do not think the evidence as to acquiescence was sufficient to show title in the plaintiff to the land up to the fence or to the land in dispute. This conclusion is fortified by other testimony for the plaintiff. The surveyor who ran the line across the lot for the plaintiff, cutting off the 80 acres, testified that such line ran into the swamp of the creek and mill pond for practically 200 feet; that it crossed the fence more than once; that the fence was not parallel with this line; that he thought the fence was put around the field; that there was not anything there to indicate the fence was put there for a line; and that a part of the mill pond lies north of the line he ran but the creek does not.

The plaintiff contends also that the deed to the Garretts conveyed exactly 80 acres off the north side of lot 335, and that for this reason he (the plaintiff) owned the rest of the lot under his deed conveying 170 acres in the south side of lot 335. This contention is based on the rule stated in Gress Lumber Company v. Goody, 94 Ga. 519, 21 S.E. 217, and Vaughn v. Fitzgerald, 112 Ga. 517, 37 S.E. 752, that a deed conveying an exact number of acres on the north side of a particular lot of land, the lot being by statute a square, is sufficiently certain to embrace a parallelogram resulting from drawing a line across the lot, parallel with its northern boundary, so as to cut off the number of acres stated.

If the deed to the defendants conveyed exactly 80 acres it does not necessarily follow that the plaintiff owns the rest of the lot. The evidence shows that when the defendants got their deed in 1911 they began farming the land, 'and tended right down close to the water all the way across' the lot; that they sold timber and cut stack poles on the strip of land between their fence and the high water mark of the mill creek, without objection from...