Clark v. White

• Decision Date: 12 August 1904
• Citation: Clark v. White, 120 Ga. 957, 48 S.E. 357 (Ga. 1904)
• Parties: CLARK v. WHITE et al.
• Court: Georgia Supreme Court

48 S.E. 357

120 Ga. 957

CLARK

v.WHITE et al.

Supreme Court of Georgia.

Aug. 12, 1904.

TITLE BY PRESCRIPTION —-ADVERSE POSSESSION.

1.Interrupted and discontinuous periods of possession cannot be tacked so as to ripen into a good title by prescription.

¶ 1.SeeAdverse Possession, vol. 1, Cent. Dig. §§ 222, 227.

2.Continuous possession for five years, and, after an abandonment for several years, a possession for six months, followed by ocupancy of a storehouse for several years, but less than seven, did not make out that continuous adverse possession sufficient to create a good title by prescription under color; and, regardless of the other questions in the case, the court rightly granted a nonsuit.

(Syllabus by the Court.)

Error from Superior Court, Camden County; T. A. Parker, Judge.

Action by L. A. Clark against W. A. Whit; and others.Judgment for defendants.Plaintiff brings error.Affirmed.

Clark brought an action of trespass against White and others for cutting timber upon a tract of 87 acres.Clark claimed title by prescription under color.It appeared that he bought the land in 1877, went in possession in 1878, built a house, cleared and fenced 3 or 4 acres, lived on the place five years, and then moved off.The garden and clearing grew up in undergrowth, the fences rotted, and the house was moved off.About 12 or 15 years after Clark left the place, he rented it to Curtis for 5 years.Curtis went on the place, made some improvements, remained only for 0 months, and then abandoned it.There was no occupancy or cultivation of the premises by any one after Curtis left—a period of from 4 to 6 years before the suit was filed—though there was evidence that, after Curtis moved away, Clark permitted Prohawk to use a room of one of the outhouses to store tools and carts in.The plaintiff testified: "I do not know how long it was from the time I moved off to the time Mr. Curtis moved on, but it has not been very long since Mr. Curtis went there.He only stayed a few months on the place, though he rented it from me for five years."There was testimony that Clark sometimes drove out from St. Mary's, where he lived, to look at the land.Frohawk testified: "There has been no cultivation of that land, to amount to anything, since Mr. Clark moved away from there. 1 would say that that was about fifteen or sixteen years ago that Mr. Clark lived there on the land.I am now thirty-seven years old.I was only a small boy when Mr. Clark went there.I suppose I was about from twelve to fourteen years old when he moved away.Since he moved, no one was on the land until up to the time that Curtis moved there.* * * I would say that the only cultivation of the land was that by Mr. Clark.The fences that had been built by him had all rotted down, burnt up, or been moved away, at the time Curtis went there."Some of the deeds relied on as color of title were excluded by the court on the ground that they had not been properly attested so as to entitle them to record.It did not appear on what title the defendants relied, though there was evidence that they had been in possession of the land, cutting timber and boxing for turpentine purposes.The court granted a nonsuit, and the plaintiff excepted.

J. L. Sweat, for plaintiff in error.

S. C. Atkinson, John W. Bennett, and Simon W. Hitch, for defendants in error.

LAMAR, J.(after stating the foregoing facts).It is unnecessary to determine whether the deeds executed out of the state had been properly attested, or whether they were duly recorded.For if the color had been admitted, there was not such evidence of continuous possession as to ripen the same into a good prescriptive title.The plaintiff's own possession was only for five years.He moved away in 1883, tore down the house, and allowed the fences to rot, and the inclosure to grow up in undergrowth.It was years afterwards before another entry; and, the previous possession having been broken, and its continuity destroyed, no advantage thereof can be taken by tacking or adding it to the subsequent possession through Curtis.At any time during the...