Tanner v. Brasher

• Decision Date: 27 February 1985
• Docket Number: No. 41181,41181
• Citation: Tanner v. Brasher, 254 Ga. 41, 326 S.E.2d 218 (Ga. 1985)
• Parties: TANNER, et al. v. BRASHER, et al.
• Court: Georgia Supreme Court

Page 218

326 S.E.2d 218

254 Ga. 41

TANNER, et al. v. BRASHER, et al.

No. 41181.

Supreme Court of Georgia.

Feb. 27, 1985.

Michael J. Bowers, Atty. Gen., Wallace E. Harrell, Sp. Asst. Atty. Gen., Gilbert, Gilbert, Whittle, Harrell, Gayner & Scarlett, Brunswick, for Joe Tanner et al.

Daniel H. White, Darien, for Bill Brasher et al.

SMITH, Justice.

Appellees, Bill Brasher and Norman Kittles, filed suit as representatives of a class of Sapelo Island landowners to enjoin certain state officials from interfering with their access to property that they claimed on the northern end of the island. They also sought damages from the officials. Appellants, the officials, filed a motion to dismiss, which the trial court treated as a motion for summary judgment. They subsequently appealed from the denial of the motion and the trial court's certification of the class. We affirm in part and reverse in part.

In 1969, Annemarie Reynolds sold her holdings on Sapelo to the state. She conveyed most of the property by warranty deed. She conveyed some of the property, including the area known as Racoon Bluff, by quitclaim deed on the advice of her attorney. Mrs. Reynolds apparently intended to quit-claim her interest in lots in Racoon Bluff that the Reynolds estate had purchased from the owners, descendants of a group of former slaves who had settled in Racoon Bluff after manumission.

In 1983, Brasher, who is a real estate developer, and Kittles purchased a lot in Racoon Bluff from the Handy family. The evidence does not show that the Reynolds estate ever purchased this lot. Brasher and Kittles subsequently attempted to ferry a jeep to Sapelo so they could drive to the lot. State officials met them at the public landing on Sapelo and would not allow them to land.

Brasher and Kittles filed a claim to the lot with the Department of Natural Resources and later filed this suit. Appellants contend that the state gained title to the lot and to all of Racoon Bluff by adverse possession under color of the quitclaim deed. Brasher, Kittles and the prospective class members assert that they never relinquished their claims to the land and that the state's possession of the land was permissive at best.

Some of the potential class members testified that although no one lived at Racoon Bluff, their families had owned land there for many years, they had paid taxes on the land, and they visited the land occasionally. They asserted that the state never notified them of its claim to the land. They also testified that the state closed the gate to the north end of Sapelo during hunts and during timber cutting, and that the state required them to ask permission before they could go to the north end to collect wood or to hunt racoons. No permission was required to go fishing at the north end.

The trial court ruled that appellees created an issue of fact as to the ownership of Racoon Bluff and therefore as to whether the officials were acting within the scope of their employment in denying appellees access to the property. The court also certified the landowners as a "common" class. The court denied appellees' motion for an interlocutory injunction, but appellees did not appeal the ruling.

1. Appellants, the state officials, assert the defense of sovereign immunity on two levels. Appellants contend that they should be granted summary judgment because they all acted within the scope of their authority, thus this suit is actually against the state and should be barred by sovereign immunity. Appellants claim that they acted within the scope of their authority because the state, not appellees, owned the land in question. They contend that appellees are precluded by sovereign immunity from questioning the state's claim to adverse possession of the land.

We begin with appellants' assertion that appellees may not question the state's claim to the land. The concepts behind the state and federal mandates of sovereign immunity are so similar that we may turn to cases based upon the Eleventh Amendment to the United States Constitution for guidance. ¹ United States v. Lee, 106 U.S. (16 Otto) 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882), provides a situation in which the United States Supreme Court was faced with a strikingly similar fact situation. ²

Under the will of George Washington Parke Custis, his Arlington, Virginia estate passed to his daughter, the wife of General Robert E. Lee, for life, then to his grandson, George Washington Parke Custis Lee. During the Civil War, the United States Congress passed legislation "for the collection of direct taxes in the insurrectionary districts," which divested an owner's title to land if the owner did not pay the tax on the land in person. Lee, supra, at 199. Mrs. Lee, who owned the life estate at the time that the legislation was passed, did not, for obvious reasons, travel to Washington to pay the tax. The federal government rejected an offer by Mrs. Lee's agent to pay the tax and subsequently purchased the property at a tax sale.

George W.P.C. Lee, a few years later, inherited the property and filed suit against a number of federal officials to prevent them from interfering with his rights in the estate. The defendants, and the United States on appeal, contended that the property, which was being used as a cemetary for soldiers and sailors and was known as "Arlington Cemetary," belonged to the United States. They claimed that this showed the suit to be one against the government and thus barred by sovereign immunity. The Supreme Court identified the threshold issue: "Could any action be maintained against the defendants for possession of the land in controversy under the circumstances of the relation of that possession to the United States however clear the legal right to that possession might be in the plaintiff?" Lee, supra, 106 U.S. at 199, 1 S.Ct. at 242.

The court, after analyzing the differences between the British and American concepts of sovereign immunity, cited United States v. Peters, 5 Cranch. 115, 3 L.Ed. 53 (1809), in which Chief Justice Marshall stated, "[I]t can certainly never be alleged that a mere suggestion of title in a State ... must arrest the proceedings of the court, and prevent their looking into the suggestion and examining the validity of the title." Lee, supra, 106 U.S. at 210, 1 S.Ct. at 252. The court then denied the government's assertion that a court may not inquire into a suit against an individual "in regard to property which he holds as an officer or agent of the United States," Lee, supra, at 216, 1 S.Ct. at 257.

In this case, as in Lee, the scope of the employees' authority will depend, to a degree, upon the validity of the employees' assertion of title in the state. In this situation we must reject, as the Lee court did, "the argument ... that the formal suggestion of the existence of such authority forbids any inquiry into the truth of the suggestion." Lee, supra, at 219, 1 S.Ct. at 259. ³ Sovereign immunity does not enable state officials to prove the state's ownership of land simply by saying that the state owns the land.

To hold otherwise would throw the constitutional doctrine of sovereign immunity in conflict with the constitutional provision for separation of powers. 1983 Const. of Georgia, Art. I, § II, Para. III. This court held in Dougherty v. Bethune, 7 Ga. 90, 92 (1849), "Whether facts upon which rights depend, are true or false, is an inquiry for the Courts to make, under legal forms; it belongs to the judicial department of the government. By the Constitution the legislative, [executive,] and judicial departments are distinct." As the legislature was denied the power to legislate the truth of facts in Dougherty, here we must deny the executive branch the power to conclusively establish facts by pleading them.

We thus turn to appellants' claim that they have established, as a matter of law, the state's acquisition of the property involved here by adverse possession. Appellees produced evidence that they have record title to the land, that the state's possession of the land was permissive, and that the state did not purport to have a valid claim of right to the land or give notice that it did have a valid claim to the land. This evidence is sufficient to raise questions of fact as to whether the state...