Werk v. Big Bunker Hill Mining Corp.

• Decision Date: 18 November 1941
• Docket Number: 13922.
• Citation: 17 S.E.2d 825,193 Ga. 217
• Parties: WERK v. BIG BUNKER HILL MINING CORPORATION.
• Court: Georgia Supreme Court

17 S.E.2d 825

193 Ga. 217

WERK v. BIG BUNKER HILL MINING CORPORATION.

No. 13922.

Supreme Court of Georgia

November 18, 1941

Syllabus by the Court.

1. A demurrer by the plaintiff of that part of the cross-action wherein the defendant sets up a claim for damages against the plaintiff for having sued out the injunction should have been sustained.

2. It was erroneous to charge the jury as to the claim for damages above referred to, notwithstanding that the judge had theretofore declined to sustain the plaintiff's demurrer to that part of the defendant's pleadings which related thereto, there being no evidence to sustain such contention.

3. Viewing as a whole the instructions given the jury, it is not sufficient for the grant of a new trial that the judge charged the jury that 'but possession of land as I have charged you even without a deed for a period of twenty years gives a good title to the prescriber.' While in that immediate connection he did not charge the jury that such possession, in order to give a good title must be adverse, he did elsewhere fully charge that principle.

4. Ordinarily a refusal to give in charge to the jury substantially in the language requested in writing, a timely pertinent, and legal instruction which is properly adjusted to one or more issues arising out of the evidence and which is specific in its application thereto, is ground for new trial, although in principle and in more abstract terms the charge requested may have been covered by other instructions given by the court.

5. The timely written request to charge contained in the eighth ground of the motion for new trial, and referred to in the fifth division of the opinion, was legal, and, under the facts recited in that ground was pertinent, and it was error to refuse it.

6. A new trial will be granted with less reluctance when the motion therefor was passed upon by a different judge from the one who presided at the trial of the case.

The Big Bunker Hill Mining Corporation owned certain gold mining properties in Lumpkin County, Georgia, comprising several land lots designated by number. Adjoining the Big Bunker Hill properties on the east was what is known as the Keystone property owned by Louis Werk, the plaintiff, and comprising several land lots designated by number. A dispute arose between the parties as to the location of the true land line between the respective properties. The plaintiff contended that the true land line between the properties was that designated as the Barnes line as surveyed by Professor J. C. Barnes, of Dahlonega, Georgia. The defendant contended that the true line between the properties was that known as the Sitton line as surveyed by one Bennie Sitton fifty or sixty years ago. These two lines were approximately five hundred feet apart, extending north and south, and this width of five hundred feet constituted the disputed area between the parties. The Big Bunker Hill Mining Corporation built part of its plant on this disputed area, and Werk filed suit in the superior court of Lumpkin County to enjoin the defendant from trespassing upon his property, and for other appropriate relief. The defendant answered, denying that it was trespassing upon the plaintiff's property, claiming the disputed area as its own, and by way of cross-action sought damages against the plaintiff for instituting the litigation and obtaining an order temporarily enjoining the operations of the defendant on the disputed area. The defendant contended also that the so-called Sitton line had been established by long acquiescence.

On the trial it appeared that the plaintiff had title to the land lots claimed by him, that the defendant had title to the land lots claimed by it, and that the main issue was as to the location of the true land line between these respective properties. The defendant insisted that the plaintiff was estopped to claim the disputed area, because his alleged agent sat by while the defendant was constructing its plant, without protesting that the defendant was locating its buildings beyond its property line and on the land of the plaintiff. This contention was contradicted by evidence of the plaintiff, to the effect that the president of the defendant company, while he was preparing to locate a site for the defendant's buildings, was advised that he was over on property claimed by the plaintiff, and that in spite of this warning he proceeded to locate the defendant's plant on the disputed area, and said he had made a survey himself, and that he was going to hold the property up to the Sitton line.

The plaintiff filed a demurrer to the defendant's cross-action for damages, which demurrer was overruled, and exceptions pendente lite were filed. That issue was submitted to the jury. The jury returned a verdict in favor of the defendant for the land in dispute, and found no damages against either party. A motion for new trial was overruled, and the plaintiff excepted.

The defendant's answer contained the following allegation: 'Defendant shows that if its buildings were erected on land of petitioner, that petitioner would be estopped to bring this suit, because T. F. Christian, plaintiff's agent and attorney, sat idly by and permitted defendant to expend $100,000 for machinery and equipment, and at no time made any claim defendants were not on the land purchased by them, and said agent actually sent B. G. Hollifield to point out the lines, and they were so pointed out and the improvements made on the representations made by him, which were corroborated by marked timber, old corners, and recognition of over fifty years.' It was testified on behalf of defendant that T. F. Christian, an attorney of Dahlonega, was the agent of the plaintiff, Louis Werk, that he knew that the defendant was building a mill and expending money on its plant located on the disputed area of land, that he looked after the Keystone property generally for the plaintiff, that he knew that the defendant was erecting its buildings and claiming the property up to the Sitton line, and that he did not raise any objection and did not advise the defendant of the plaintiff's title and claim to that land. This evidence was contradicted by evidence of the plaintiff; and there was evidence in the case that Ben Hollifield told the president of the defendant company that he was over on property claimed by the plaintiff, and that the president of the defendant company stated that he was going to hold the property anyway and that he had made a survey himself, and that he was going to hold back to where he bought, which was the alleged Sitton line.

The plaintiff requested that the following charge be given to the jury: 'I charge you that the defendant, Big Bunker Hill Mining Corporation is a corporation. A corporation acts through its officers and agents. And in this case if the defendant corporation, through its officers and agents, acted upon its own judgment and information as to the land line of its property, or, if it had equal means with the plaintiff of ascertaining the true line, or if it was not misled to its injury by any conduct or declaration of the plaintiff or his agents, then you would not be authorized to find for the defendant on this phase of the case, and in that event your verdict should be in favor of the plaintiff as to this branch of the case.' This request was refused. The court, however, charged on the law of estoppel as follows: 'Where the estoppel relates to the title to real estate, the party claiming to have been influenced by the other's acts or declarations must not only be ignorant of the true title, but also of any convenient means of acquiring such knowledge. Where both parties have equal knowledge or equal means of obtaining the truth, there shall be no estoppel. In order for an equitable estoppel to arise, there must generally be some intended deception in the conduct or declaration of the party to be estopped or such gross negligence as to amount to constructive fraud, by which another has been misled to his injury.'

The plaintiff requested the following instruction: 'On the question of estoppel as contended by the defendant in this case, I charge you that one who has title to land and sees another who is in bona fide possession thereof place valuable improvements thereon, without giving notice of his title, is not thereby subsequently estopped from asserting his title. And in this case, even if you may be satisfied from the evidence that Mr. Werk or his agents knew that the defendant was placing valuable improvements on his land and said nothing to the defendant about it, this would not authorize you to find an estoppel against Mr. Werk on that account.' The requested charge was refused, except that in its charge to the jury the court gave the first sentence of the above request as follows: 'On the question of estoppel as contended by the defendant in this case, I charge you that one who has title to land and sees another who is in bona fide possession thereof place valuable improvements thereon, without giving notice of his title, is not thereby subsequently estopped from asserting his title.'

The plaintiff requested the following charge: 'I charge you that you are not concerned with the effect or result of whatever verdict you may render in this case. Your entire responsibility is to find a true verdict under the evidence introduced in the case and the law as given you in charge by the court; and as to the effect or result of such verdict, that is a matter with which you are not at all concerned.'

In the record is the entire charge of the court. It begins with a rather full statement of the contentions as given in the pleadings, and in this connection states to the jury the defendant's contention that the plaintiff...