NOVEMBER 11, 1941.
Equitable petition. Before Judge Rourke. Chatham superior court. June 30, 1941.
George S. Cargill, for plaintiff. Ernest J. Haar, for defendant.
1. "An unascertained or disputed boundary line between coterminous 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 the Civil Code, § 3247" (1933, § 85-1602). "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 twenty years. . . 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. . . When a line has been located by an executed parol agreement between the coterminous proprietors, or established by seven years acquiescence as provided by the Civil Code, § 3247 [1933, § 85-1602], the line thus located and established is binding on the grantees of the coterminous proprietors." Osteen v. Wynn, 131 Ga. 209 (3, 4) ( 62 S.E. 37, 127 Am. St. R. 212); Tyson v. Anderson, 164 Ga. 673 (3), 676 ( 139 S.E. 410); Brown v. Hester, 169 Ga. 410 ( 150 S.E. 556).
2. "Actual adverse possession of land under a claim of right for twenty years, though originating in mistake, will ripen into good prescriptive title against all the world except the State and persons not sui juris. Such possession must be public, continuous, exclusive, uninterrupted, and peaceable, be accompanied by a claim of right, and must not have originated in fraud. Shiels v. Roberts, 64 Ga. 370 (3)." Waxelbaum v. Gunn, 150 Ga. 408 ( 104 S.E. 216); Walton v. Sikes, 165 Ga. 422, 425 ( 141 S.E. 188); Code, §§ 85-402, 85-406; Riley v. Griffin, 16 Ga. 141 (19) (60 Am. D. 726).
3. Where location of the line between two coterminous proprietors is uncertain, and the proprietors, conceding the title of each to his separate lot, erect at joint expense a fence intended as marking the line of division, and both acquiesce therein by exercise of actual possession up to the fence, such possession of each is in right of the possessor, and, being so, is not mere permissive possession within the meaning of the Code, § 85-402, which declares that permissive possession can not be the foundation of a prescription until an adverse claim and actual notice to the other party. See Powell on Actions for Land, 432, § 326; Ford v. Holmes, 61 Ga. 419 (3); 32 Words Phrases, 161.
4. If separate proprietors of adjoining city lots 84 and 86 erect a fence, and they or their successors acquiesce in the fence as the dividing line for more than seven years as indicated in the preceding division, the fence will become the established dividing line, although it may result in an encroachment of two or three feet by lot 84 on lot 86, according to the original plat of the lots. So also if the proprietors of lot 84 in good faith maintain actual adverse possession of that lot up to the fence for more than twenty years, they will thereby acquire title by prescription to such strip of land as may extend between the fence and the original platted line of the lots.
5. If the improvements on lot 84 consist in part of a dwelling-house and a driveway between the house and the fence as a means of ingress and egress to the public street, and if after establishment of the fence as the dividing line and the running of the prescriptive period as indicated above, the proprietor of lot 86 asserts title beyond the fence line so as to encroach upon what had theretofore been treated as part of lot 84, and in virtue of such claim of title removes the fence and constructs a new fence on what he claims to be the original platted line, extending into and obstructing the driveway, the construction of the new fence would amount to an ouster of the strip of land as cut off by the new fence and a continuing trespass and nuisance flowing from continued obstruction of the driveway, which could be enjoined. Town of Rentz v. Roach, 154 Ga. 491 (5) ( 115 S.E. 94).
6. In the circumstances stated above, the proprietor of lot 84 might have a remedy by ejectment to recover the strip of land, and by summary proceeding under the Code, §§ 72-203, 72-401, to abate the nuisance; but the superior court, having power in one action to grant both legal and equitable relief (Code, § 37-901), and to that end settle the whole controversy between the parties, will not leave the parties to separate actions at law; but on the principle of avoidance of multiplicity of actions equity may intervene to adjust all the rights involved. In the circumstances, although the new fence may have been completed, and ordinarily the court may not by injunction compel a party to perform an act (Code, § 55-110), the court at the suit of the owner of lot 84 may decree title of the strip of land to be in the plaintiff, and require the fence to be removed, and enjoin replacement of the fence or other obstruction of the driveway. Russell v. Napier, 80 Ga. 77 ( 4 S.E. 857); Hendricks v. Jackson, 143 Ga. 106 ( 84 S.E. 440); Rosser v. Styron, 171 Ga. 238 (3) ( 155 S.E. 23); Hornsby v. Smith, 191 Ga. 491 ( 13 S.E.2d 20, 133 A.L.R. 684), and cit. This case differs from Campbell v. Deal, 185 Ga. 474 ( 195 S.E. 432), and similar cases, which did not involve appropriation of the land of the plaintiff and the construction thereon of a continuing nuisance, and no question of multiplicity of actions was involved.
7. The court erred, on motion of the defendant in the nature of a general demurrer, in striking the allegations of the petition and the prayer relating to injunction, and in granting a nonsuit at the conclusion of the plaintiff's evidence on the other issues in the case.
Judgment reversed. All the Justices concur.
No. 13895. NOVEMBER 11, 1941.
Mrs. Harkness, in virtue of a deed dated March 13, 1903, became owner of certain land in the Southville Ward in the City of Savannah. The land embraced, among others, lot 84 and the immediately adjoining lot 86, the latter being east of the former. Both lots were rectangular in shape, each fronting north on Maupas Avenue thirty feet more or less and extending south 94 feet more or less to an alley. In 1905 Mrs. Harkness sold and conveyed lot 84 to Strong, who shortly thereafter erected a dwelling-house and other improvements thereon. By several successive conveyances title to this improved lot passed to Mrs. Okarma, who, on January 20, 1917, sold and conveyed it to Cargill. Finally the lot was conveyed, on July 1, 1921, by Cargill to Mrs. Lockwood. All the deeds above mentioned were duly recorded. On May 17, 1930, Mrs. Harkness sold lot 86 to Mrs. Daniel. On June 27, 1940, Mrs. Lockwood instituted an equitable action against Mrs. Daniel. The petition alleged in substance all that is stated above, and these allegations were admitted in the answer. Other allegations of the petition, denied by the answer, are in narrative substantially as follows. At the time of the purchase by Cargill the lot was also improved by erection of a dwelling-house thereon and otherwise. A line fence separating the two lots had been erected so long as to become in a state of decay. Shortly after his purchase Cargill and Mrs. Harkness agreed that a new fence should be built at the expense of both on the exact line of the old fence. The agreement was fully performed, and the line so marked by the fence was recognized and acquiesced in by both parties until after petitioner's purchase from Cargill and thereafter by petitioner and Mrs. Harkness until Mrs. Harkness sold lot 86 to Mrs. Daniel in 1930, and thereafter by petitioner and Mrs. Daniel until "within the past year or two" . The improvements on both lots were built with reference to the fence. Private adjacent driveways appurtenant to each house extended from the street to the rear of the lots. The fence separated the two driveways. At the time of the above-mentioned purchase by Mrs. Daniel of lot 86, the jointly constructed fence having become out of repair, petitioner and defendant in 1940, the then owners of the respective lots, took up the matter of building a new fence. The defendant then for the first time raised the question that the fence was east of the true line and encroached on defendant's lot number 86 a distance of 3-2/10 feet, and proposed individually to build the new fence if petitioner would consent to the change of location. Petitioner rejected the proposition, on the ground that in the circumstances and on account of the long acquiescence and recognition by the parties and their predecessors the line marked by the fence had in law become binding upon the parties. After such rejection the defendant, shortly before June 20, 1940, removed the existing fence and constructed another fence 3-2/10 feet west thereof into the plaintiff's driveway, practically closing it, thereby committing a continuous trespass on plaintiff's property. It was alleged, that in the circumstances petitioner's adverse and continuous actual possession, for more than twenty years, of the strip of land 3-2/10 feet wide by 87-4/10 feet long, so cut off by change of location of the fence, afforded petitioner a title by prescription to the strip of land; that the defendant had threatened, if petitioner should recover the land in virtue of title by prescription, that defendant would install obstruction at the street entrance of the driveway that would prevent its use. The prayers were (a) for injunction to prevent the defendant from maintaining the new fence in its present location, or from blocking in any wise the driveway entering petitioner's property; (b) that the original fence line be decreed the established division line between the property of petitioner and that of the defendant, and that title to the strip of land to the west of the division line be decreed to be in petitioner; and for general relief. At interlocutory hearing, on motion in the nature of a general demurrer, the court passed an order as thereafter modified, striking all allegations and prayers for injunctive relief. The plaintiff excepted pendente lite to this order. On the trial on the issues as to the dividing line and title by prescription, the evidence and admissions in the answer and stipulations in court tended to show the case as alleged in the petition. On motion the judge granted a nonsuit. The plaintiff excepted, assigning error on that judgment and on the ruling excepted to pendente lite.