Halpern v. Lacy Inv. Corp.

• Court: Georgia Supreme Court
• Writing for the Court: GREGORY
• Citation: Halpern v. Lacy Inv. Corp., 379 S.E.2d 519, 259 Ga. 264 (Ga. 1989)
• Decision Date: 01 June 1989
• Docket Number: No. 46688,46688
• Parties: HALPERN v. The LACY INVESTMENT CORPORATION.

Page 519

379 S.E.2d 519

259 Ga. 264

HALPERN v. The LACY INVESTMENT CORPORATION.

No. 46688.

Supreme Court of Georgia.

June 1, 1989.

Peter M. Degnan, James L. Eastham, Atlanta, for Shirley L. halpern.

Jerry B. Blackstock, James W. Hawkins, William M. Ragland, Jr., Powell, Goldstein, Frazer & Murphy, Atlanta, for the Lacy Inv. Corp.

GREGORY, Justice.

Lacy, a corporation, is the titleholder of a parcel of land which Halpern claims to own by adverse possession. A jury found against Halpern's adverse possession claim and in favor of Lacy's counterclaims for damages for slander of title and trespass and for expenses of litigation. Halpern appeals from the judgment entered on the verdict.

The main issue on appeal is whether a claim of right must be made in good faith in order to satisfy the claim of right element of adverse possession or if the claim of right requirement is fully met by a showing only of hostile possession.

The parcel of land in question is located at the rear of Halpern's residential lot and is part of a large tract titled in Lacy's name. The Halpern lot was purchased in 1959 and a residence constructed on it in 1960. There was evidence that at the time of construction the Halperns realized they would like the parcel in question to be a part of their backyard. Mr. Halpern, who is now deceased, offered to purchase the parcel from Lacy's predecessor in title but he refused to sell. Knowing they did not own the parcel, the Halpern's caused it to be bulldozed, cleared and included as part of their yard. They have used it ever since.

1. The trial court charged the jury that adverse possession or title by prescription has four requirements. One of those, he said, is that possession must be accompanied by a good faith claim of right. He went on to charge the jury that a good faith claim of right may be evidenced by acts or conduct relating to the property which are inconsistent with the true owner's title. He went even further to charge that a rebuttable presumption of a good faith claim of right may arise out of the dominion one exercises over the property. But he drew the line there and refused to give Halpern's request to charge that hostile possession is the legal equivalent of a claim of right. Halpern contends the charge and refusal to charge constitute error but we hold the trial court was correct.

Halpern relies on Ewing v. Tanner, 184 Ga. 773, 780, 193 S.E. 243 (1937), a dispute over the ownership of personal property, where this court held that hostile possession and claim of right "are, for all practical purposes, legal equivalents." She also brings to our attention Chancey v. Georgia Power Company, 238 Ga. 397(1), 233 S.E.2d 365 (1977), where we wrote that a claim of right will be presumed from the assertion of dominion.

We hold that the correct rule is that one must enter upon the land claiming in good faith the right to do so. To enter upon the land without any honest claim of right to do so is but a trespass and can never ripen into prescriptive title. In the language used in Hannah v. Kenny, 210 Ga. 824, 83 S.E.2d 1 (1954), such a person is called a "squatter". See Mayor and Council of Forsyth v. Hooks, 182 Ga. 78, 84, 184 S.E. 724 (1935); Crawford v. Crawford, 143 Ga. 310, 85 S.E. 192 (1915). Here there was evidence that the Halperns knew the parcel of land was owned by another yet they simply took possession when their offer to purchase was declined. There was evidence to support a finding that this possession never changed its character.

One may...