Osteen v. Wynn

• Decision Date: 25 July 1908
• Citation: 131 Ga. 209,62 S.E. 37
• Parties: OSTEEN et al. v. WYNN et al.
• Court: Georgia Supreme Court

62 S.E. 37

(131 Ga. 209)

OSTEEN et al.

v.WYNN et al.

Supreme Court of Georgia.

July 25, 1908.

1. Deed—Construction—Description.

A description of land, located in a county which is laid off by government survey into square land lots, as all of a named lot except 50 acres in the southeast corner, means all the land included in the lot except 50 acres, located by taking the southeast corner as a base point from which two sides of the excepted land shall extend equal distances so as to include by parallel lines 50 acres, and is sufficiently definite.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Deeds, §§ 316-335.]

2. Same—Repugnancy in Description.

Where a deed contains two descriptions of the land conveyed, one general and the other particular, if there is any repugnance, the latter will prevail. So where a deed conveys several lots of land by number, and all of a named lot except 50 acres in the southeast corner, followed by the words, "known as the Wooldridge plantation, " the latter words are but matter of further description.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Deeds, §§ 316-335.]

3. Boundaries—Methods of Establishment —Acquiescence.

An unascertained or disputed boundary line between coterminus proprietors may be established: (1) By oral agreement, if the agreement be accompanied by actual possession to the agreed line, or is otherwise duly executed; or (2) by acquiescence for seven years by the acts or declarations of the owners of adjoining land, as provided in Civ. Code 1895, § 3247.

(a) If the line be established by oral agreement; and possession be held to it, it is not necessary to the validity of such agreement that the possession continue for 20 years.

(b) In order that a line may be established by acquiescence for seven years by the acts or declarations of the owners of adjoining land, it is not essential that the acquiescence be manifested by a conventional agreement.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Boundaries, §§ 232-242.]

4. Same—Binding Effect.

When a line has been located by an executed parol agreement between the coterminous proprietors, or established by seven years' acquiescence, as provided by Civ. Code 1895, § 3247, the line thus located and established is binding on the grantees of the coterminous proprietors.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Boundaries, §§ 232-242.]

(Syllabus by the Court.)

Error from Superior Court, Chattahoochee County; W. A. Little, Judge.

Action by E. J. and R. L. Wynn against J. W. Osteen and others. Judgment for plaintiffs, and defendants bring error. Reversed.

E. J. and R. L. Wynn filed their petition against J. W. Osteen and others to recover damages for trespass already committed by reason of defendants having entered upon described land of plaintiffs with their sawmill and sawed timber thereon, and to enjoin defendants from further trespass. Plaintiffs allege that they are the owners of a certain tract of land containing all of lot No. 140 in the Thirty-Third district of Chattahoochee county, except 50 acres in the southeast corner. Defendants purchased the timber on the 50 acres of this lot, which was excepted in plaintiffs' conveyance, but have not confined their operations to the 50 acres so purchased, having located their mill beyond the borders of the 50 acres, and have cut, or are proceeding to cut, timber belonging to plaintiffs immediately surrounding the 50-acre tract.

They pray for damages for the timber cut, and for an injunction to prevent further trespass. Defendants filed a demurrer to the petition, which was overruled, and they excepted pendente lite. They answered, admitting that they had a sawmill located in the southeast portion of lot No. 140, but denying that their mill was located on plaintiffs' land, or that they had sawed any of their timber. They allege: That all the timbered land in the southeast corner of lot No. 140 belongs to Dr. C. N. Howard, and that plaintiffs' line runs on the edge of the timber, but does not embrace any of it; that plaintiffs' predecessors in title agreed to the outside edge of all this woodland to be the line between these two tracts of land, and have recognized this boundary to be the line for more than seven years.

On the trial the plaintiffs introduced a deed from James B. Moore to R. L. Wynn, dated February 1, 1893, recorded February 10, 1893, upon a consideration of 1, 500, to "all of lots of land Nos. 148 and 149, of 202 1/2 [acres] each, more or less, and all of lot 147 except 12 acres off the northeast corner, all of lot 140 except 50 acres off the southeast corner thereof, and all of lot 141 except 38 acres off the northern one-fourth of said lot, said tract of land aggregating 850 acres, more or less, and being in the Thirty-Third district of originally Lee, now Chattahoochee, county, Georgia." Also, a deed from R. L. Wynn to E. J. Wynn. dated April 13, 1895, recorded December 2, 1895, consideration $750, conveying a one-half interest in the same land, similarly described, except that it concluded with these words: "Said lands known as the Wooldridge plantation on the Cusseta and Jamestown Road." E. J. Wynn testified that he and his brother had been in possession of the land so conveyed since the dates of their respective deeds, and, along with other lands, had cultivated a considerable portion of lot 140, that he had considered he owned all the lot except 50 acres in the southeast corner, and that, while he did not know where the line ran, he claimed all the land conveyed to him, which was all the lot except 50 acres in the southeast corner. Recently he had the 50 acres measured off, and found defendants had located their mill on plaintiffs' land, and there were between 19 and 21 acres of timber cut by defendants beyond the line of Howard's 50 acres, as shown by a survey thereof. The testimony of Howard tended to show that at the time he purchased, in 1872, Mr. Wooldridge, the common grantor of the predecessors in title of both plaintiffs and defendants, had owned two places, one known as the "Hardaway Place, " and the other as the "Wooldridge Home Place"; a part of lot 140 being in each of these places. He and his brother purchased what was known as the Hardaway place, and at the time they purchased it Mr. Wooldridge pointed out the line as going to the edge of the woods, which were on the Hardaway place, and were at that time sur rounded by a fence which remained for many years until it rotted or was burned down, and the line of the place which he had thus purchased included all the woods in the southeast corner. Mr. Wooldridge had previously deeded his home place to his wife and children when he sold the Hardaway place to Howard and his brother, and the line as pointed out had always been recognized by them. He went into possession of the Hardaway place in 1872, and the fence was not wholly destroyed for 12 or 15 years thereafter, and as recently as five years ago there were signs of rails around the woods. He had returned it for taxes as 50 acres of lot 140, and did not know there were more than 50 acres until recently, when it had been surveyed and measured. Under his purchase he had acquired from Wooldridge all the Hardaway place, and the timber in dispute was and had always been recognized as a part of the Hardaway place, and never as part of the Wooldridge home place. By a number of other witnesses, including several of the children of Mr. Wooldridge, it was shown that until they parted with the title and possession of the land, some time prior to R. L. Wynn's purchase in 1893, they had always regarded the edge of the woods as the boundary line between the Wooldridge home place and the Hardaway place, and that Howard's laud included the woods, and his line extended to the edge of the woods. The deed from Wooldridge to the Howards described the land as "lying and being in the Thirty-Third district of Chattahoochee county, known and distinguished in the plan of said district as the following lots and parts of lots, " naming them, and including "fifty acres in the southeast corner of lot No. 140, " which was followed by other matters of description. The jury returned a verdict for the plaintiffs. The defendants filed a motion for a new trial, which being overruled, they excepted.

Gotchins & Chappell, J. E. Chapman, C. C. Minter, and Herbert Howard, for plaintiffs in error.

S. B. Hatcher and J. H. Martin, for defendants in error.

EVANS, P. J. (after stating the facts as above). 1. The demurrer raises the question of the sufficiency of the description of the land upon which the trespass was alleged to have been committed. The petition alleged that the plaintiffs were the owners of land lot No. 140 in the Thirty-Third district of Chattahoochee county, except 50 acres in the southeast corner, and that the defendants had cut, and were proceeding to cut, the timber thereon immediately surrounding the excepted 50 acres. Judicial notice will be taken that, as to lots of land laid out by state survey in this county, each contains 202 1/2 acres, and is in the form of a square. Huxford v. Southern Pine Co., 124 Ga. 182, 52 S. E. 439. A conveyance of 50 acres in the southeast corner of such a lot of land has been held to contain a sufficient description. The corner of thelot is to be taken as a base point from which two sides of the tract of land shall extend equal distances, so as to inclose by parallel lines the quantity of land conveyed. Payton v. McPhaul, 128 Ga. 510, 58...