Robertson v. Abernathy

• Decision Date: 11 September 1941
• Docket Number: 13765.
• Parties: ROBERTSON v. ABERNATHY.
• Court: Georgia Supreme Court

16 S.E.2d 584

192 Ga. 694

ROBERTSON v. ABERNATHY.

No. 13765.

Supreme Court of Georgia

September 11, 1941

In an action of ejectment the plaintiff recovered a strip of land as a part of lot 602, 1st district, 4th section of Haralson County; the recovered strip commencing on the east side of a State highway right of way; its southern boundary running east, with the east and west line between lot 602 and lot 605 on the south, 131 2/3 feet to the alleged southeast corner between lots 602 and 605; thence north 1 degree 45 minutes to the lands of Bennett; thence west 121 2/3 feet to the right-of-way; thence south 686 feet to the point of beginning. The amended petition sought to recover on three theories: (1) that the eastern boundary of the tract sued for was the original land line, and that the tract was a part of lot 602; (2) that the eastern boundary of the tract sued for had been legally established, under the Code,§ 85-1602, by acquiescence through acts and declarations of the adjoining landowners for seven years; and (3) that plaintiff had prescriptive title by twenty years actual possession of the tract. The answer denied all material averments of the petition; and the defendant claimed that the land belonged to him by being a part of lot 603, adjoining lot 602 on the east, under his purchase of the southern part of lot 603 about three years before. On the first theory, there was evidence for the plaintiff that while there were no marked original line trees on the line of the disputed tract itself, there were two or more such trees marking the original north and south landlot line south of the tract; that the alleged eastern boundary of lot 602 was a continuation of the line connecting those trees; and that this was the true original line, and had been so known in that locality for many years. There was evidence for the defendant that the line run by a surveyor at an angle of one degree forty-five minutes east from a supposed original line tree south of the disputed tract, as the tract was described in the judgment of recovery, and as was contended by the plaintiff to be the true line, ran too far to the east and on land of the defendant; that the correct line extended only to the State highway or a few feet east of the highway; and that immediately north of the disputed tract a ditch running north and south had been recognized for many years by the plaintiff and the adjoining owners as the line between lots 602 and 603 immediately north of the disputed tract, and this ditch was about eighty-one feet west of the line of the disputed tract as contended by the plaintiff, so that to connect plaintiff's line with the line of the ditch would make a loop or offset.

On the second theory of acquiescence, a witness testified for the plaintiff that he had previously owned lot 603, including both the disputed tract and the tract north of it, where the ditch and a rail fence at about the same place had been located; and that the line as claimed by the plaintiff 'was recognized as the line between me and [him] during the time I was there for twelve years.' On cross-examination he said that there had been no cultivation or house on the disputed tract, but it was a pine thicket. On re-examination, he said: 'As to whether [the plaintiff] and I had an understanding about that line, I never spoke to [him] about that line before [the defendant] bought it in my life. I respected that as the line * * * for ten or twelve years. My son tended on the east side up to the ditch [which was north of the disputed tract], and [plaintiff] tended the west side.' There was testimony for the defendant, that this witness had made statements to him and others to the effect that the correct line was not the one which he claimed to have thus recognized; and that the plaintiff's line ran only to the State highway, or not more than ten or twelve feet to the east, or not far enough to make his tract beyond the highway 'more than big enough to build a cotton-pen on.'

On the third theory, the only prescription claimed in the petition was by virtue of twenty years' actual possession of the disputed tract. There was no conflict in the evidence that all of this tract was unfenced, unimproved, had never been cultivated, and remained in original woodland; and that plaintiff had not done more on this tract than cut and haul trees at uncertain intervals and during uncertain periods. The petition did not set up any prescription by seven years' possession under color of title. The plaintiff introduced a recorded bond for title, made in 1882 and a recorded deed thereunder, made in 1896, conveying 'lot 602' and five other lots, which according to the testimony lay contiguously and in one tract, although the instruments did not so describe them. There was testimony that plaintiff had cultivated the upper, undisputed part of lot 602 for twenty-five years or more; but that at some unstated times, a former owner of the adjoining land in lot 603 claimed title to land extending further west than the disputed tract, and that at unstated times unidentified persons had contended that the line claimed by the plaintiff was not the correct line. There was also testimony that in unclearly defined parts of the lots south of lot 602, and at unstated times, the plaintiff had cultivated land and maintained a 'hog pasture'; those lots to the south being included in the conveyances to the plaintiff. There was no issue under the pleadings or evidence as to conflicting descriptions or priorities under muniments of title or constructive possession thereunder; but the sole questions were: what was the true original land lot line between the parties, what if any line was established by acquiescence between the plaintiff and the predecessors in title of the defendant in the manner required by statute, and what if any prescriptive title was acquired by the plaintiff by twenty years' actual adverse possession of the disputed tract.

The defendant excepted to the refusal of a new trial on the general grounds, and on charges to the jury, and failure to give in charge requested instructions, as indicated in the rulings.

Price Edwards, of Buchanan, for plaintiff in error.

Astor Merritt, of Douglasville, and W. W. Mundy, Jr., of Cedartown for defendant in error.

Syllabus Opinion by the Court.

JENKINS Justice.

1. The plaintiff sued to recover a small tract of land as part of a 'lot 602,' on three theories: (1) that the alleged eastern boundary of the tract sued for was the original land line between lot 602 and lot 603; (2) that the eastern boundary of the tract sued for had been legally established by acquiescence through the acts and declarations of the adjoining landowners for seven years; and (3) that plaintiff had prescriptive title by twenty years' actual possession. The answer...