Friendship Baptist Church, Inc. v. West

• Decision Date: 16 October 1995
• Docket Number: No. S95A0951,S95A0951
• Parties: FRIENDSHIP BAPTIST CHURCH, INC. v. WEST.
• Court: Georgia Supreme Court

Page 618

462 S.E.2d 618

265 Ga. 745

FRIENDSHIP BAPTIST CHURCH, INC. v. WEST.

No. S95A0951.

Supreme Court of Georgia.

Oct. 16, 1995.

George R. Ference, Bauer & Deitch, Atlanta, for Friendship Baptist Church, Inc.

Sam G. Dickson, Atlanta, for West.

CARLEY, Justice.

In 1993, Friendship Baptist Church brought this action for declaratory judgment against West, seeking a declaration that the Church had acquired prescriptive title to a parcel of unenclosed land adjacent to the Church measuring 15 feet by 75 feet. The trial court denied a motion for directed verdict made by the Church, and the jury returned a verdict finding that title was vested in West. The Church appeals from the judgment entered by the trial court on the jury's verdict and enumerates as error the denial of its motion for directed verdict.

Where, as here, there is no color of title and prescriptive title is claimed by virtue of possession for 20 years, the prescription will not extend beyond the actual "possessio pedis," which means the area of actual possession as defined in OCGA § 44-5-165. Arnold v. Shackelford, 219 Ga. 839, 843(2), 136 S.E.2d 384 (1964); Kerlin v. Southern Bell Telephone, etc., Co., 191 Ga. 663, 667(2), 13 S.E.2d 790 (1941). Under OCGA § 44-5-165, actual possession may be evidenced by enclosure, cultivation, or any use and occupation which is so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another. The Church neither enclosed nor cultivated the lot in question. Where there is no evidence of enclosure or cultivation, notoriety and exclusivity become questions of fact for the jury. Chamblee v. Johnson, 200 Ga. 838, 842(1), 38 S.E.2d 721 (1946). See also Flannery & Co. v. Hightower, 97 Ga. 592(3), 25 S.E. 371 (1895).

In 1970, the Church began receiving rental payments from a sign company which maintained billboards on the lot. However, the billboards would give notice of nothing more than an easement, as is the case with telephone and power lines and poles. See Chancey v. Ga. Power Co., 238 Ga. 397(1), 233 S.E.2d 365 (1977); Kerlin v. Southern Bell Telephone, etc., Co., supra 191 Ga. at 666(1), 13 S.E.2d 790. The posts and signs in this case should be considered as marking or outlining a general area which is being used according to the usual and ordinary manner, and if the outer limits of this use remained the same for the prescriptive period, the easement would apply to such general area. Kerlin v. Southern Bell Telephone, etc., Co., supra at 667(2), 13 S.E.2d 790. See also Humphries v. Ga. Power Co., 224 Ga. 128, 129(3), 160 S.E.2d 351 (1968). However, the billboards would not, as a matter of law, evidence actual possession by the Church which is so exclusive as to prevent occupation by others of the entire lot or even of the area directly beneath the signs. See Chancey, supra 238 Ga. at 398, 233 S.E.2d 365.

The Church did mow and occasionally clean up the area, but that is not generally sufficient to constitute actual possession, much less to require such conclusion as a matter of law. 2 CJS 701, Adverse Possession, § 40. Because the lot in question adjoins the Church's property, other claimants could have interpreted such mowing and occasional clean-up as having a merely aesthetic objective and not as an intent to exercise dominion.

Neither the Church's billboards nor its mowing is as notorious or exclusive as the Church's enclosure or cultivation would be. Therefore, the issue of actual possession "becomes a question of fact for the jury. [Cit.]" Chamblee v. Johnson, supra 200 Ga. at 842(1), 38 S.E.2d at 721. Where there is some evidence on either side of this issue, a reviewing court should not disturb the verdict. Thompson v. Fouts, 203 Ga. 522(3), 47 S.E.2d 571 (1948).

It follows that the trial court did not err in denying the Church's motion for directed verdict.

Judgment affirmed.

All the Justices concur, except BENHAM, C.J., and SEARS and THOMPSON, JJ., who dissent.

BENHAM, Chief Justice, dissenting.

I respectfully disagree with the majority's conclusion that the trial court did not err when it denied Friendship Baptist Church's motion for directed verdict. Accordingly, I dissent from the affirmance of the judgment entered by the trial court.

1. The church sought a declaratory judgment that it had prescriptive title to the disputed parcel of land. "Title by prescription is the right to property which a possessor acquires by reason of the continuance of his possession for a period of time fixed by law." OCGA § 44-5-160. In Georgia, prescription is a method of transferring interests in land without the consent of the prior owner, and rests upon the public policy that "the elapse of a reasonable time should assure security to a person claiming to be an owner." 7 Powell, The Law of Real Property § 1012, p. 91-5 (Rev. ed. 1995). See also Shiels v. Roberts, 64 Ga. 370, 373 (1879). The possession of real property in conformance with the requirements of OCGA § 44- 5-161 for 20 years confers upon the possessor good title by prescription to the property. OCGA § 44-5-163. The possession that serves as the foundation of prescriptive title must be accompanied by a claim of right and "be public, continuous, exclusive, uninterrupted, and peaceable...." OCGA § 44-5-161(a)(3). Ownership of real property established by an unbroken chain of recorded deeds may thus be lost by the subsequent ripening of a prescriptive title to the property in another. Hearn v. Leverette, 213 Ga. 286, 288, 99 S.E.2d 147 (1957).

In its effort to establish prescriptive title to the real property at issue, the church presented evidence that it had requested and received an unsecured bank loan to buy property at the corner of Northside Drive and MLK Drive in 1970; from 1970 until 1991, the church had received annual rental payments from a sign company which maintained billboards on the lot; and since 1970, church personnel had mown the grass, picked up debris, and removed campaign signs from the tract. The church's current pastor testified that the property had not been used for any purpose other than billboard rental since 1971, and that no one had come on the property or protested the church's use of the property. On cross-examination, several witnesses agreed that the land could be used for a lemonade stand, picnicking, or tomato cultivation despite the billboards' presence, and that nothing prevented anyone from walking across the land. A representative of the billboard company testified that it had changed the lessor of the billboard site at Northside and MLK from West to the church in 1970. She stated that the company had not verified the change in ownership and remitted rental payments to the church from that point until the company removed the signs in 1991. The witness stated that company records reflected that West had raised questions about the property's ownership in 1986 and 1988, but had never instituted legal proceedings. The representative acknowledged that the company had listed West as the owner of the property in the sign company's 1973 application to the Department of Transportation for a sign permit, and opined that this contradictory information had resulted from copying a City of Atlanta sign application filed by the company in 1951. An attorney who in 1988 wrote letters on West's behalf to the sign company asserting ownership of the property testified that the lot was "fairly well maintained."

The presumption that the church's nonpermissive possession of the property was undertaken in good faith (Barfield v. Vickers, 200 Ga. 279, 281, 36 S.E.2d 766 (1946)) was not rebutted, and it was undisputed that the church's possession had continued for a period greater than the requisite 20 years. Consequently, the church established as a matter of law that it met the temporal requirement of prescriptive title, and that its possession was based on a claim of right. Spillers v. Jordan, 96 Ga.App. 426, 432, 100 S.E.2d 483 (1957). See also Ewing v. Tanner, 184 Ga. 773, 780, 193 S.E. 243 (1937). Furthermore, by unrefuted evidence that its possession of the tract had not been broken by ouster or successful litigation, the church established as a matter of law that its possession was uninterrupted and peaceable. 1 Pindar, Georgia Real Estate Law and Procedure, Vol. I, § 12-24 (4th ed.); Powell, Actions for Land, § 333, p. 397 (Rev. ed. 1946); Poss v. Guy, 212 Ga. 393, 395, 93 S.E.2d 565 (1956). Left for examination is whether the evidence of the public and exclusive nature of the church's possession was without conflict and was sufficient to demand entry of a verdict of prescriptive title. See OCGA § 9-11-50(a).

2. The public and exclusive nature of adverse possession

may be...