Chamdlee v. Johnson, 15492.

• Decision Date: 06 June 1946
• Docket Number: No. 15492.,15492.
• Citation: Chamdlee v. Johnson, 38 S.E.2d 721 (Ga. 1946)
• Parties: CHAMDLEE et al. v. JOHNSON.
• Court: Georgia Supreme Court

38 S.E.2d 721

CHAMDLEE et al.

v.JOHNSON.

No. 15492.

Supreme Court of Georgia.

June 6, 1946.

Syllabus by the Court.

1.The evidence was sufficient to establish prescriptive title to land by written evidence of title and seven years' adverse possession.

(a) The rule requiring continuity of possession is one of substance and not of absolute mathematical continuity, provided there is no break so as to make a severance of two possessions.

2.While the payment of taxes is not itself evidence of title, yet it is admissible as a circumstance tending to prove adverse possession.

3.The admission in evidence of the document described in the corresponding division of the opinion was not reversible error.

Error from Superior Court, Chattooga County; C. H. Porter, Judge.

Action by J. Earl Johnson against J. C. Chamblee and others to enjoin the cutting of timber on a described tract of land and to recover damages for timber allegedly cut.There was a judgment for plaintiff, and the defendants bring error.

Judgment affirmed.

J. Earl Johnson sued J. C. Chamblee and others to enjoin the cutting of timber on a described tract of land, containing seventy-six acres, and to recover damages for timber alleged to have been cut.The jury found in favor of Johnson.

Johnson sought to establish title by prescription under color of title.He introduced two recorded deeds to separate parcels, making one single tract of seventy-six acres, executed by W. R. Chastain to J. E. Johnson in 1920; and another deed from J. E. Johnson to J. Earl Johnson, dated January 10, 1942.J. E. Johnson was the father of J. Earl Johnson.Under the general grounds of the motion for new trial, and under the first amendment thereto, it is insisted by the plaintiff in error that the evidence did not show a continuous possession which could ripen into a title by prescription.

The evidence to establish possession of the land, which was situated on a mountain, and so far as the record discloses had never been cultivated or fenced, was as follows: J. Earl Johnson testified: "My father went into possession of the property in 1920.* * * The first thing he did.he took myself, brother, and mother up there * * * with the expectation of putting a summer camp * * * for camping parties, * * * and we used the place for a summer home and for camping purposes.* * * My father spent a whole year up there working on the place.* * * He built two or three hundred yards of rock wall around the spring to keep the surface water from washing in the spring.The cabin up there, I built myself with the help of other young men who went there repeatedly to camp in 1928, and it took a couple of summers to get it livable.* * * We have used it repeatedly since then.When I was not there, I had somebody in charge of the property.A fellow lived next door named Thack Hardwick, but he is dead now.* * * He and his family wrote me at different times when there was developments up there.After he passed on, his two daughters still lived there on the place and they looked after it for me. * * * This property is located * * * about two miles from the main road across the mountain.I used it almost continuously except for the time I moved away and went in the army.After [Mrs. Hardwick'? daughters] moved away Mr. Stokes had it in charge for me.He was on the east side of the property.I rented it to Mr. Herb Holbrook.He lived there about a year.During all that time * * * no one else ever sought to exercise control over this property or questioned my possession.I was discharged from the army in 1943, and until November, 1944, I was in the enlisted reserve, working for the Navy in civilian service.I cut the timber to build the cabin.Mr. Chamblee some years ago tried to buy that timber from me. * * * He tried to buy it three years ago, and I refused to sell it to him."

Upon cross-examination, the witness testified: "My age is 42.The house was built in 1928.It was a log cabin.We had tables and bunks built into it.* * * Somebody broke the lock * * * and removed them.* * * That was in 1936 and 1937.Mr. Holbrook had a stove in there about 1935 or 1936.We occupied the house in 1930.That was when we first occupied the cabin, but we were there for camping purposes repeatedly.I won't say it was occupied every year after that, * * * but it was occupied after 1930 up to 1936.We went up there two or three times during the summer.* * * Sometimes we stayed a week, * * * and sometimes just for the week end.That continued until Mr. Holbrook rented it in 1936.I was there after that time.I don't think I was there every year from 1936 to 1939.* * * I don't think I stayed any longer than a week-end during 1939 and 1940.The Hardwicks looked after the property for me from 1920 or 1921 and kept us notified as to the happenings.I rented the place in 1936.About 1935 or 1936 Mr. Hardwick died and so did Mrs. Hardwick, and the girls looked after the place for awhile, and then Mr. Stokes looked after it about 1939 or 1940.When I say looked after the property I mean * * * keep an eye on the tract and to keep me informed as to conditions.For instance, there was some forest rangers wanted to cut a road through the place for fire prevention and I was notified * * * by the man who was looking after it, and I gave my permission for them to go through.I mean keeping an eye on it and let me know if anybody went in there to cut timber.Mr. Stokes repaired the roof of the house and I paid him for it.I paid Mr. Stokes to repair the roof twice.The last time was about two years ago, before that--must have been four or five years previous.The house is not practically dilapidated, you could live in it--it is habitable.No furniture of any kind in it--something like nine or ten years since any furniture has been in there."

Mrs. J. B. Persley testified: "My father was Mr. Hardwick.We all looked after this property for Mr. Johnson after my father's death.It was known as the Johnson property.* * * I left the mountains in 1935.My sisters lived out there until about three years ago.* * * I said something a moment ago about looking after the property.As to what I meant by that--we usually saw about it, and in the spring time we would burn off around the cabin and see that no fires were set."

Joe Murphy testified: "I know what part of it was Mr. Johnson's property.

I know that they have been coming up there for a number of years and have made it their summer home."

W. H. Stokes testified: "I join lands with him [Johnson].I looked after this place for Mr. Johnson and his father for a number of years.I began looking after the property something like three years ago.He paid for looking after the property for him twelve dollars a year for three years.And he paid for doing the work on the cabin.And I covered it once for him.One time when Holbrook lived there I sealed it on the...