Coffin v. Barbaree

• Court: Georgia Supreme Court
• Writing for the Court: W. W. McKinnon, Preston; HEAD
• Citation: Coffin v. Barbaree, 103 S.E.2d 557, 214 Ga. 149 (Ga. 1958)
• Decision Date: 07 May 1958
• Docket Number: No. 20033,20033
• Parties: E. C. COFFIN v. Louise H. BARBAREE et al.

Page 557

103 S.E.2d 557

214 Ga. 149

E. C. COFFIN v. Louise H. BARBAREE et al.

No. 20033.

Supreme Court of Georgia.

May 7, 1958.

Syllabus by the Court

The evidence was insufficient to sustain the allegations of the plaintiff's petition, and therefore he was not entitled to the relief sought.

In an action to enjoin alleged continuing trespasses, the plaintiff's petition set out that he is the owner and in possession of certain lands 'facing on Main Street (20) feet more or less, and extending back south the same width to the right-of-way of the Seaboard Air Line Railroad.' By amendment it was alleged that his deed was duly recorded, and that it described the property as 'facing on Main Street 20 feet, more or less, and extending back south the same width to the right-of-way of the Seaboard Air Line Railroad.' By a second amendment, adding paragraph (d) to his prayers, he prayed: 'That the line between the lands of your petitioner and the defendant be decreed to be a line described as follows: Beginning at the northeast corner of the land of your petitioner at which point is located the north end of an old paling fence; thence from said point of beginning south 1 degree 2 minutes west along said paling fence a distance of 110 feet; thence due east along the said plaing fence a distance of 5 feet; thence south 1 degree 31 minutes east a distance of 131 feet 7 inches to a point on the north right-of-way line of the Seaboard Airline Railway.'

On the trial, at the conclusion of the evidence, the plaintiff's motion for a directed verdict was denied by the trial judge. The jury returned a verdict for the defendant, on which judgment was entered. The plaintiff's motion for a new trial as amended, and his motion for judgment notwithstanding the verdict, were both denied, and error is assigned on each of these judgments.

W. W. McKinnon, Preston, J. Frank Myers, Americus, for plaintiff in error.

Carlton S. Brown, Lumpkin, for defendants in error.

HEAD, Justice.

'It is error to direct a verdict, except where there is no conflict in the evidence introduced as to the material facts, and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. Code § 110-104; Shaw v. Probasco, 139 Ga. 481, 77 S.E. 577; Hughes v. Cobb, 195 Ga. 213, 230, 23 S.E.2d 701; Yablon v. Metropolitan Life Ins. Co., 200 Ga. 693, 703, 38 S.E.2d 534. And a verdict should not be directed unless there is no issue of fact, or unless the proved facts, viewed from every possible legal point of view, can sustain no other finding than that directed. Davis v. Kirkland, 1 Ga.App. 5, 58 S.E. 209; Ayer v. First National Bank & Trust Co., 182 Ga. 765, 187 S.E. 27; Renitz v. Williamson, 149 Ga. 241(4), 99 S.E. 869; Atwood v. Edenfield, 150 Ga. 198, 103 S.E. 170; Word v. Bowen, 181 Ga. 736(3), 184 S.E. 303; Everett v. Miller, 183 Ga. 343, 188 S.E. 342; Patterson v. Fountain, 183 Ga. 676, 189 S.E. 4; Hughes v. Cobb, supra.' Norris v. Coffee, 206 Ga. 759, 58 S.E.2d 812, 813. See, also, Shockey v. Baker, 212 Ga. 106, 108, 90 S.E.2d 654.

'To maintain an action for trespass or injury to realty, it is essential that the plaintiff show either that he was the true owner or was in possession at the time of the trespass.' James v. Riley, 181 Ga. 454, 182 S.E. 604; Bruce v. Strickland, 201 Ga. 526, 40 S.E.2d 386; Shirling v. Hester, 201 Ga. 706, 40 S.E.2d 743; Tolnas v. Pope, 212 Ga. 50, 90 S.E.2d 420.

In the present case, the testimony offered on behalf of the defendant supports the verdict rendered. In order to return a verdict for the plaintiff, the jury would have been required to find that he was the true owner, or that he was in possession, of the five-foot strip represented by the offset in the line he sought to have...