Gaskins v. McCranie Timber Co.

• Decision Date: 08 May 1969
• Docket Number: No. 25157,25157
• Citation: 225 Ga. 280,168 S.E.2d 311
• Parties: John H. GASKINS v. McCRANIE TIMBER COMPANY et al.
• Court: Georgia Supreme Court

Page 311

168 S.E.2d 311

225 Ga. 280

John H. GASKINS v. McCRANIE TIMBER COMPANY et al.

No. 25157.

Supreme Court of Georgia.

May 8, 1969.

Syllabus by the Court

1. The jury was authorized to find in favor of the boundary line as contended for by the defendants and in favor of their long possession of the land so bounded.

2. (a) The court properly denied the plaintiff's motion to strike the plat from the defendants' answer and cross action.

(b) The enumeration complaining that the trial court failed to charge that the plat was not evidence and was not to be considered as evidence is not meritorious.

(c) Allowance of testimony by defendants' witnesses concerning the plat was not erroneous.

3. The defendants were not barred by their original pleadings so as to preclude them from showing the boundary line found by the verdict and incorporated in the judgment.

4. The court's charge was sufficient as to the three forms of verdict.

5. The enumeration relating to an aerial survey or photograph cannot be considered since the particular one complained of is not identified.

Fred T. Allen, E. R. Smith, Sr., Nashville, for appellant.

Vickers Neugent, Pearson, for appellees.

GRICE, Justice.

This review involves a dispute over the location of the boundary dividing the property of the plaintiff from that of the defendants, which adjoins on the north. The litigation is between John H. Gaskins, whose land lies in land lot number 479 in the fifth land district of Atkinson County, and three named parties, doing business as McCranie Timber Company, who as tenants in common own adjoining land in lot 442 in that land district.

In his complaint filed in the Superior Court of Atkinson County, the plaintiff, insofar as necessary to recite, set forth his contentions as to the location of his property, particularly its north boundary line, and his possession of the disputed area, and sought injunctive relief against the cutting of timber therefrom by the defendants.

The defendants, in their answer and cross action as amended, denied the essential allegations of the plaintiff's complaint. They alleged, in essential part, their contention as to the line dividing said properties and their possession of the area in question, and prayed that the court adjudge the common boundary in stated particulars and enjoin the plaintiff from trespassing and interfering with the defendants as to the harvesting of trees and timber north of said alleged boundary.

Upon the trial considerable oral testimony and documentary evidence was introduced. The jury returned a verdict in favor of the defendants and in favor of an injunction against the plaintiffs.

Thereupon the court entered judgment enjoining the plaintiff from trespassing north of the line as contended for by the defendants and from interfering with the harvesting of timber therefrom.

The plaintiff appeals from such judgment and specifies eleven enumerations of error.

1. Several of these enumerations turn upon the basic issue in the case, the location of the line dividing lots 442 and 479 in the fifth land district of Atkinson County as originally laid out. The contentions of the parties as to this issue were quite diverse, and the evidence bearing upon it was in sharp conflict. From the testimony and documents submitted by the defendants the jury was authorized to find that the boundary line contended for by them in their amended answer and cross action was the correct one. From such evidence the jury was also authorized to find that the defendants, not the plaintiff, had been for many years in possession of the land so bounded.

Accordingly, there is no merit in the enumerations urging in essence as follows: that the verdict and judgment are contrary to law and evidence and without evidence to support them; that a verdict for the plaintiff was demanded because the undisputed evidence showed that the plaintiff had been in adverse possession to the line claimed by him for more than seven years; that the evidence demanded a verdict for the plaintiff as to his original north line; that the defendants' contention as to their adverse possession is contrary to the evidence and without evidence to support it; and that the final judgment set up a line which is not the true original line according to the original survey upon which the defendants rely and by which they are bound.

2. Several other enumerations relate to a plat attached to an amendment to the defendants' answer and cross action.

(a) One such enumeration complains that the court erred in denying the plaintiff's motion to strike such plat from the defendants' amendment. The objection was that this was an attempt by the defendants to plead their evidence. This complaint is not justified. The plat merely provided the defendants' contentions as to the extent of their property, particularly the boundary line in dispute.

(b) The appellant maintains in another enumeration that the court erred in failing to instruct the jury that this plat was not evidence and was not to be considered as evidence by them, as the trial judge had stated that he would charge when he denied the motion to strike. This position is not supported by the record. Immediately after reciting verbatim the paragraph of the defendants' amended answer and cross action which expressly referred to such plat, the judge charged the jury as follows: 'Now these papers that I have just read to you are the...