Poland v. C. C. Osborne Lumber Co

• Decision Date: 19 May 1925
• Docket Number: (No. 16126.)
• Citation: 128 S.E. 198,34 Ga.App. 105
• Parties: POLAND et al. v. C. C. OSBORNE LUMBER CO. et al.
• Court: Georgia Court of Appeals

34 Ga.App. 105

128 S.E. 198

POLAND et al.

v.C. C. OSBORNE LUMBER CO. et al.

(No. 16126.)

Court of Appeals of Georgia,

Division No. 2.

May 19, 1925.

(Syllabus by the Court.)

Error from Superior Court, Lincoln County; E. T. Shurley, Judge.

Processioning case by the C. C. Osborne Lumber Company and others against Mrs. Nonie Poland and others. Judgment for protestants, and defendants bring error. Reversed.

Wm. H. Fleming, of Augusta, for plaintiffs in error.

Callaway & Howard, of Augusta, for defendants in error.

BELL, J. This was a processioning case. The adjacent tracts of land between which the line was in dispute may be referred to as "the Searles tract, " lying west of the line, and the "Bussey-Burch tract, " lying east of the line. The owners of the Searles tract were the heirs of John Searles, deceased. The owner of the Bussey-Burch tract was the Twin City Power Company. M. G. and J. J. Dorn had purchased the timber upon the Searles tract, and the Osborne Lumber Company had purchased the timber upon the Bussey-Burch tract. The Osborne Lumber Company claimed that the Dorns were trespassing across the dividing line and instituted proceedings to have the line established by processioners. We thus have the Searles heirs and the Dorns on one side of the controversy and the Twin City Power Company and the Osborne Lumber Company on the other side.

All parties were agreed that the southern end of the dividing line was at a point known as the Tutt corner, evidenced by a rock, and that from this point the true line ran in a northerly direction along a well-defined hedgerow for a distance of several hundred yards to an old road. The dispute is as to the direction which the line should take from the old road to the northern boundary of the two tracts. The owners of the Searles tract claimed that the dividing line continued from the old road in the same course, without variation, which it had taken from the point of beginning; that is, that the dividing line was a straight line from one end to the other. The owners of the Bussey-Burch tract con tended that the line varied or deflected westward at the old road at an angle of 16¹/₂ degrees, and that it was evidenced by an old fence row or hedgerow extending from the old road to the northern boundary. The area between the disputed lines was therefore in the shape of a V or triangle. The processioners found that the line was a straight line as claimed by the owners of the Searles tract. The owners of the Bussey-Burch tract filed a protest, on the trial of which the jury sustained the return of the processioners. The protestants filed a motion for a new trial, which was granted, and upon the second trial the jury found against the return of the processioners. The Searles heirs moved for a new trial, which the court overruled, and they excepted.

1. Each side claims to have been entitled to a verdict as a matter of law. By going through the record and selecting certain parts of the testimony of the several witnesses and ignoring the other evidence, it is possible to demonstrate that the evidence demanded a verdict in favor of the plaintiffs in error. By a like process, it may be shown that the verdict should have been for the defendants in error. But, without undertaking to summarize or outline it, we are satisfied that, upon a consideration of all of the evidence, a verdict was not demanded for either party, and that the question of whether the verdict shall be allowed to stand will turn upon the assignments of error in the special grounds of the motion for a new trial.

2. In ground 9 of the motion for a new trial error is assigned upon the following charge of the court:

"And if you find that the owners of the Bussey-Burch tract, and those occupying said tract under said owner, either cultivated said land on the east side of said hedgerow up to the hedgerow or fence row, or cut cedar posts or other timber up to the fence row or hedgerow, then such acts would have been possession of the owners of the Bussey tract up to the old hedgerow."

The exception is that this charge was unwarranted by the evidence.

A diligent search of the record fails to disclose any evidence to the effect that the owners of the Bussey-Burch tract ever cut any timber or cultivated any land on the disputed area; that is, west of the line claimed as the true line by the owners of the Searles tract. The court, therefore, committed error in giving this charge. Were the losing parties prejudiced thereby? The court had just instructed the jury that a claim of right accompanied by actual possession for more than seven years should be respected and that the lines should be so marked as not to interfere with such possession. It is not improbable that some such occurrence as the following took place in the jury room when the jurors came to their deliberations: One juror takes theposition that the protestants, or owners of the Bussy-Burch tract, are entitled to prevail because of actual possession under a claim of right for more than seven years. To another juror, who inquires as to the character of possession meant, he explained that he refers to the cutting of timber and the cultivation of the land. Challenged as to the evidence of such acts, he replies, more or less convincingly, that if there had been no evidence thereof the trial judge would not have instructed them that such acts on the part of the protestants or their predecessors in title would have constituted possession within the meaning of the law, or, in other words, that the judge would not have submitted the issue. The jurors might thus have been led into giving the protestants an advantage on a material matter, without evidence on which to do so.

In Culberson v. Alabama Construction Co., 127 Ga. 599 (1), 56 S. E. 765, 9 L. R. A. (N. S.) 411, 9 Ann. Cas. 507, the Supreme...