Martin v. Patton

• Decision Date: 19 February 1997
• Docket Number: No. A97A0474,A97A0474
• Citation: 225 Ga.App. 157,483 S.E.2d 614
• Parties: , 97 FCDR 909 MARTIN v. PATTON.
• Court: Georgia Court of Appeals

Page 614

483 S.E.2d 614

225 Ga.App. 157, 97 FCDR 909

MARTIN v. PATTON.

No. A97A0474.

Court of Appeals of Georgia.

Feb. 19, 1997.

Reconsideration Denied March 5, 1997.

Newton & Howell, John T. Newton, Jr., Griffin, for appellant.

Howard P. Wallace, Griffin, for appellee.

ELDRIDGE, Judge.

This is an appeal from a jury verdict to quiet title involving coterminous landowners; the titles to the two parcels of land came from common grantors, the Lloyd Cleveland Estate and Byrd Patton. The land at issue lies in Land Lots 76 and 77 of the Fourth Land District, originally Henry County, now Spalding County, Georgia, and was surveyed in June 1931 by N.S. Westbrook, Civil Engineer. The survey plat was recorded in Plat Book 2, page 217, of the Spalding Superior Court records. The original 1931 survey of the tract of land by Westbrook gave courses and distances for the perimeter but did not survey the land lot line between Land Lots 76 and 77. On the 1931 survey, the land lot line is shown as a broken line which divided the larger parcel from the smaller parcel as a matter of convenience for the original grantor; the larger parcel (Lot 76) showed on the plat as having "83 25/100 ±" acres, and the smaller parcel (Lot 77) showed on the plat as having "59 85/100 ±" acres.

On April 6, 1951, Byrd Patton conveyed to Ralph E. Patton, appellee's husband, for love and affection, the smaller tract lying in Land Lot 77, which purported to contain 55.85 acres "more or less" and which was the rest and remainder of the parcel of land in Land Lot 77; the legal description stated the acreage in specific terms as containing 59.85 acres, less four acres previously conveyed. Appellee, Velma Louise Helms Patton, acquired the land by virtue of a deed of assent, dated September 2, 1982, and which was essentially the same as the legal description contained in the deed to her husband. The legal description read 55.85 acres of land "more or less" and "all that tract or parcel of land lying and being in Land Lot 77." The deed of her deceased husband had a slightly different description as being in the southwest corner of Land Lot 77, in the Fourth District of originally Henry County, now Spalding County, Georgia, as shown on plat of survey of the Lloyd Cleveland Estate, recorded in Plat Book No. Two, page 217, in the Clerk of Spalding County Superior Court; less 4 acres in the southeast corner, heretofore sold to R.C. Rogers; "said property is bounded to the North by Tom Moore Estate, East by Public Road and land of R.C. Rogers; South by Public, Road, and land of H.H. Thompson; and west by land lot number Seventy-Six (76)."

In January 1942, L.P. Goodrich, Administrator of the Estate of Alan M. Cleveland, sold at public sale to Byrd Patton the land described in the deed as "Eighty three and twenty-five hundredths (83.25) acres in Lot Seventy-six (76), and fifty nine and eighty-five (59.85) acres in lot seventy seven (77), in the Fourth District of original Henry now Union District of Spalding County, Georgia, bounded on the East by public road and the lands of Grady Parker and G.G. Aiken; on the South by public road and the lands of John Calhoun and Wesley; on the West by a creek and the lands of Tom Moore; and on the North by the lands of Tom Moore, as shown by plat and survey recorded in the Clerk's office of said County in Plat Book No. 2, page 217." This legal description contained no metes and bounds. This deed begins with specific acreage instead of the usual language "all that tract and parcel of land lying and being" which indicates that the intent of the grantor was to convey the land by acreage instead of tract. See Roberts v. Groover, 156 Ga. 386, 387(2), 119 S.E. 696 (1923). The deed to Velma Louise Helms Patton, however, was not a specific acreage deed but a deed for a tract, because it used both the language "more or less" after the acreage and the language "all that tract or parcel of land lying in Land Lot 77."

Appellant, Ruth G. Martin, acquired title to the larger parcel of land in Land Lot 76 by warranty deed from Josiah Arnold Patton, dated December 26, 1952, which conveyed the larger parcel that purportedly contained 83.25 acres. The legal description gave no metes and bounds; it described the parcel specifically as 83.25 acres of land in the Southeast corner of Land Lot Number 76 in the Fourth Land District of originally Henry County, now Spalding County, Georgia, as shown on Plat of Survey of the Lloyd Cleveland Estate and recorded in Plat Book No. Two, page 217 in the office of the Clerk of the Superior Court of Spalding County, Georgia, and bounded on the north by Tom Moore Estate; east by Land Lot 77; south by Land Lot 53; and west by lands of the Tom Moore Estate and John Calhoun; "[t]his deed conveys the same real property as that which was conveyed by Mrs. Johnnie Lee (Mrs. Byrd) Patton to Josiah Arnold Patton by warranty deed dated April 6, 1951."

All of appellant's land lies exclusively in Land Lot 76, and all of appellee's land lies exclusively in Land Lot 77. Appellant's eastern boundary line is appellee's western boundary line; such boundary line is the land lot line between Land Lots 76 and 77.

In 1955, appellant hired the original surveyor, N.S. Westbrook, to survey the land lot line between Land Lots 76 and 77 which formed the common property line between the two tracts of land. Westbrook completed the survey on March 10, 1955. The bill for the survey stated that Westbrook had established "lines and corners to property purchased from Mr. and Mrs. Byrd Patton, being 10 acres of Old Goodin homeplace and all of Old Cleveland Place located in Land Lot 76--marking lines with iron stakes and corners with conc. monuments--computing acreages and making plat and prints of entire property owned by Mrs. Martin."

After the boundary line had been marked by iron stakes by Westbrook, appellee's husband erected a fence on the line. The fence remained in good repair on the date of the survey by Robert S. Mitchell in 1994.

After appellee's husband died in 1982, Warren L. Storey, Jr. surveyed appellee's land, which survey was dated August 20, 1982. The Storey survey showed appellee's west line and appellant's east line and the land lot line between Land Lots 76 and 77 as being 129 feet west of the line established by the 1955 Westbrook survey.

Appellant had a survey done of the location of the land lot line between Land Lots 76 and 77, which was completed on July 19, 1994. Such plat showed what, in Mitchell's opinion, were three lines: the location of the land lot line between Land Lots 76 and 77 based upon land lots north and south and which was the easternmost line; the 1955 Westbrook line along which the fence ran and which lay in the middle line; and the 1982 Storey line, which was the westernmost line on the 1994 Mitchell plat.

Appellant brought suit to quiet title to the area in dispute. The jury had all three lines from which to decide, and they chose the 1982 Storey line which was the westernmost line on the 1994 Mitchell plat.

Storey at trial testified without objection that, in his opinion, since the deeds contained no metes and bounds, although they had physical boundaries, either natural, man-made, or other ownership, the method to determine the location of the dividing line between the two parcels was to calculate the exact acreage conveyed which would establish such dividing line, notwithstanding that such dividing line was described as the land lot line between Land Lots 76 and 77. Although the 1931 survey by Westbrook shows the acreage as more or less the stated figures by use of the symbols "+" over a "-," Storey testified, without objection, that the acreage in each land lot was exactly 59.85 and 83.25 acres, which was the amount shown in the deeds. Storey admitted on cross-examination that Westbrook's survey in 1955 was an actual survey to determine the location of the land lot line between Land Lots 76 and 77. Storey also admitted on cross-examination that the dividing line established by him was not the land lot line and that the 1955 survey by Westbrook and the 1994 survey by Mitchell established the land lot line.

Appellant did not move for a directed verdict, object to Storey's testimony, or object to the charge of the court. The form verdict was drawn up by counsel without any objection, and the jury had all three lines from which to choose; they chose the 1982 Storey line. On March 1, 1996, the trial court entered a decree based upon the jury verdict pursuant to OCGA § 23-3-67. The motion for new trial was a general form motion. The motion for new trial was denied. The notice of appeal was filed on September 23, 1996, and was from the judgment entered on March 1, 1996; the motion for new trial was denied on August 30, 1996.

Appellant brought a petition to quiet title. Appellee answered and counterclaimed for trespass. By pre-trial the parties agreed to submit the issue to a jury. Counsel also agreed to the form of the verdict. On March 1, 1996, the trial court entered a decree based upon the jury verdict pursuant to OCGA § 23-3-67.

1. Appellant's first enumeration of error is that the jury erred in failing to establish the dividing line between the parties as the land lot line and, thus, the boundary line surveyed in 1955 by appellant, acquiesced in by appellee by erecting a fence on said line in 1956 and which line was undisputed until 1982 or later.

While appellee's husband may have erected a fence along the survey line established by the 1955 Westbrook survey, there is a conflict in the evidence as to why this was done and what, if anything, such fence signifies. A fence placed upon a person's own land, although near the boundary line, does not establish an agreement to a boundary line. Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983); David v. Crane, 240 Ga. 671, 242 S.E.2d 131 (1978); Bennett v. Perry, 207 Ga. 331, 61 S.E.2d 501 (1950); Dixon v. Dixon, 97 Ga.App. 54, ...