In Payne, where no error was found in the trial court's instruction to the jury that they find the true line to be either that claimed by the applicant or the protestant, it was stated that, "All the evidence tended to support the contentions of one or the other of the parties.Summary of this case from Fraser v. Kichline
DECIDED OCTOBER 4, 1951.
Processioning; from Wilkinson Superior Court — Judge Carpenter. June 16, 1951.
Victor Davidson, for plaintiff.
Lester F. Watson, Alex S. Boone Jr., for defendant.
1. The court having charged the jury that the issue in this case is whether the line marked by the processioners (as shown by their plat) is the true line, or whether the line claimed by the protestant (as shown by the plat filed with her protest) is the true line, the exception to the charge that, when the applicant makes out a prima facie case, the burden of proof then shifts to the protestant to show by a preponderance of the evidence that the return of the processioners is incorrect, was not confusing or misleading to the jury, on the ground that the court failed to charge further on the burden of proof on the protestant to prove that the line claimed by her was the true line, this being the intendment of the charge as a whole.
2. The court having correctly charged the issues in the case, it was not error to fail to set out in detail the contentions of the parties in the absence of request.
3. The jury verdict in favor of the line claimed by the protestant was authorized by evidence of enclosure of the tract in question and cultivation of a part thereof for a period of more than 20 years, upon which possession title by prescription may be founded.
DECIDED OCTOBER 4, 1951.
This processioning proceeding is before this court on appeal from a jury verdict finding in favor of the protestant, Mrs. Pearl Green, and against the return of the processioners, which return established a line as contended by the applicant, J. D. Payne.
The applicant's lands, located in land lots 390 and 391 of the 22nd land district of Wilkinson County, comprised two tracts of 53 acres and 91 acres, which had been purchased by him from Hazel Adams and Calton Adams in 1934 and 1939, respectively; the acreage being that awarded to each of them as heirs of the Adams estate in a partitioning proceeding in the Superior Court of Wilkinson County. The line in dispute runs northeast and southwest. The southern part of this boundary line runs between the lands of the applicant and those of the Williams estate (formerly lands of Mrs. Betty Pierce), and is not in dispute. The northern and larger portion of it divides the lands of the applicant and protestant. The processioners' line fixed the boundary line as the original district line separating the 22nd and 23rd land districts. The line as successfully contended for by the protestant follows an old fence and hedgerow, which fence, on the land dividing the Payne and Pierce property, is slightly on the Pierce side of the district line, but which, a few feet beyond the Pierce property, angles decidedly to the northeast on the other side of the line, so that the north corner of the line as contended by the protestant is 319 feet inside the boundary contended for by the applicant. The question is, whether the protestant is entitled to a certain triangle of land within the 22nd land district between her property and that of the applicant. The applicant's paper chain of title goes back to a deed executed in 1867 describing the land as "consisting of whole lots Nos. 390 and 391 in the 22nd land district." The protestant's chain of title goes back to a deed executed in 1890 describing all lands claimed by her as being in the 23rd land district. All deeds in evidence describe the land merely as bounded by the lands of adjoining owners. The protestant's land was in 1898 the property of Elias Caulley, who died in 1900. His son, Milton Caulley, acquired the land, and in 1935 deeded it to John Caulley, reserving a life interest, and apparently died about 1939. John Caulley died in 1948, and the protestant purchased the land from his window the following year.
Numerous witnesses testified that the hedgerow and fence comprising the line as contended by the protestant had been in existence and recognized as the dividing line since 1882. J. B. Stuckey, 81, testified that he married Elias Caulley's daughter; that the fence had first been a rail fence; that he had been familiar with it for over 56 years; that the fence was kept up, worked to as a dividing line, and trees cut. D. M. Ellington, 79, testified to the same effect. George Caulley, grandson of Elias, testified that he had known the place for 20 years; that there had always been a fence there; that the old rail fence was gone, but an old hedgerow and fence were there; and that one field was cultivated up to the fence, and there are chops on the trees on the old fence row. H. B. Stuckey, grandson of Elias, testified that he knew the fence had been there for 20 years and was still there. Quincy Williams testified that he is a nephew of John Caulley; has been familiar with the line since 1920; helped tend a field in 1922 which ran up to the fence, cut trees and weeds; that at that time it was a rail fence; that Milton Caulley sold timber to the fence in 1922 or 1923; that John Caulley put up a fence, over part of the distance in 1935 or 1936, which is still there and for which he helped carry wire "between the Sandfield and D. Payne's place." Clint Williams testified that he was a nephew of Milton Caulley; had been familiar with the place for 40 years, and lived on part of it between 1920 and 1925; that there was then a rail fence between the Sandfield and lands now owned by the applicant; and that John Caulley put up a wire fence in place of the rail one. The county surveyor testified that there is an old wire fence crossing the line from the Pierce and Green lands onto the applicant's land for about 300 yards, then an old rail fence, following which an old wire fence continues as far as the land goes; and that the old hedgerow is very plain and visible "for a good ways," it then fades out, but a continuation of it is found dividing the Spires lands (beyond the Payne lands) from those of the Caulley estate. Dick Spires was one of the processioners in this proceeding; if the line as found by the processioners was correct, he would own several acres more land than if it was an contended by the protestant. There were chops indicating an established line along the fence and hedgerow, but there was no line blazed or indicated whatever along the district line.
In rebuttal, Sam Adams, who owns land on the opposite boundary of the Payne lands, testified that C. H. Adams, his father, died in 1919 and was predecessor in title to the applicant; that Calton and Hazel were very young at the time; that he went with the surveyor who surveyed the Adams lands in the partitioning proceeding; that they did very little surveying, being mainly after the number of acres; that there was practically no fence there at that time, and they did not follow it; that the plat introduced in evidence showing the survey made at that time in the partitioning proceedings conducted for the heirs of the Adams estate is correct, and the surveyor took as the line the district line as contended by the applicant; and that he did not know whether adjoining landowners were notified as to the setting up of the line. T. B. Williams testified that he was overseer of the Adams estate for some years after 1919; that he sold timber to the original district line; that the original line was marked at that time and is still marked; that he assisted in a survey for John Caulley, but did not go to the north end of the line, but did go along the property now dividing the Payne and Pierce lands; that they ran the district line; that John Caulley, being asked why the fence was not on the line, stated, "I didn't know where the line was"; and that he did not see any hedgerow, but only a part of an old rotten rail fence.
J. D. Payne testified in his own behalf that he had been familiar with the lands for 40 years; that he bought one piece of land from Hazel Adams in 1934 and the other from Calton Adams in 1939: that he had a plat made in 1934 in order to obtain a loan, and this plat showed the district line as the dividing line; that his survey was made by J. G. Hatfield in the presence of Milt Caulley, who then owned the adjoining lands; that, when they got to the fence, the surveyor went across it and said, "Here is your corner"; that this was at a point 55 feet west of the fence; that the applicant then said, "Milt, you are acquainted with the boundaries, you know all about it. I am going to leave it entirely up to you. If you say this is where the corner ought to be, I am going to let you drive the corner stob," whereupon Milton replied, "Yes, this is where the corner ought to be," and drove a lightwood stake in the ground to mark it. (From this corner, the fence angles southeastwardly across the line and runs approximately parallel with it on the Caulley and Pierce side, but in the other direction it moves northeastwardly, and continues to angle away from the line until it reaches a distance of 319 feet inside the district line at the northern corner of the applicant's land.) The applicant then testified that at the time he further discussed with Milton Caulley the boundary line as to the 91-acre tract he was intending to buy, and inquired whether the fence was over there, to which Caulley replied, "Yes, it used to be but nobody knew where the line was, but the district line determines this place and your place." This occurred in 1934. In 1935 Milton Caulley deeded his land to John Caulley, reserving a life estate for himself, and John apparently took over the management of the place soon thereafter. The applicant further testified: "I tried several times to get Mr. John Caulley to let's run the line and get it straight. He always objected. . . Finally I was forced to get land processioners to let them run the line." He further testified that, when John Caulley was selling pulpwood, he told him he understood the district line was the dividing line, and Caulley stopped cutting; that he kept up the fence himself; that all the land is good for is growing timber; that there was an old hedgerow there; that "I and Milt Caulley in December, 1934, about agreed on the line then from where the hedgerow was"; that he never claimed he and John Caulley were in harmony about the line; that they were trying to get it settled; that he and Milt established the line "betwixt Hazel's part and not Calton's part"; that he had never cleared the land to the fence, but had cut fence posts and some wood from it.
The jury returned a verdict in favor of the protestant. The applicant made a motion for a new trial which was overruled, and the exception is to this judgment.
1. The first ground of the amended motion for a new trial contends that the trial judge erred in that he failed to charge the jury that there was any burden of proof on the protestant to prove that the line as claimed by her was the true line. The judge charged that the burden of proof was on the applicant, Mr. Payne; that the introduction in evidence of the return of the processioners and plat of the surveyor is sufficient to establish a prima facie case; that, when such case is established, the burden of proof then shifts to the protestant to show by a preponderance of the evidence that the return of the processioners is incorrect. He further charged that the jury must determine whether the line run and marked by the processioners is the true dividing line, or whether the line claimed by the protestant is the true dividing line, and instructed them to find for the applicant or the protestant accordingly.
As stated in McCollum v. Thomason, 32 Ga. App. 160 ( 122 S.E. 800), there are at least three proper verdicts in a processioning case. The jury may find that the line as marked by the processioner is the true line; they may find merely that the line so marked is not the true line, or they may go further and find that the line so marked is not the true line but that the line as contended by the protestant is the true line. In the instant case, all the evidence supported the contention of either the applicant or the protestant, and the court did not submit to the jury the third possible conclusion — that is, finding against the line as marked by the processioners, but not finding in favor of any other boundary line. Nor is there any assignment of error on the court's failure to do so. As these were the only issues submitted to the jury, and as all the evidence tended to support the contentions of one or the other of the parties, the charge given could not have confused or misled the jury. This assignment of error is without merit.
2. The second special ground complains of the following charge: "The issue to be tried by the jury in a processioning case, that is, in this case, is whether the line found and marked by the processioners or the line claimed by the protestant is the true dividing line between the properties of the adjoining owners in this case. The issue is one of boundary and not of title." This is claimed to be error because the contentions of the parties as to the basis of their respective claims was not charged in detail. Where the issue is correctly stated, a failure to state affirmatively the contentions of the parties is not a ground for a new trial. Varn v. Bloodworth, 157 Ga. 300 (1) ( 121 S.E. 380); Wisenbaker v. Arnett, 23 Ga. App. 51 (1) ( 97 S.E. 452); Bray v. C. I. T. Corporation, 51 Ga. App. 196 ( 179 S.E. 925). The ultimate contentions of the parties and the rules of law governing the issue were correctly stated. No request for more explicit instructions was made. This ground is without merit.
3. In considering the general grounds, it is to be noted that the line fixed by the processioners is the original line called for by the deeds of both parties, since the land of the applicant is described as being entirely within the 22nd land district, and that of the protestant within the 23rd land district. Color of title will not extend beyond the description contained in the grant. Bradley v. Shelton, 189 Ga. 696 (4) ( 7 S.E.2d 261). However, actual adverse possession for a period of 20 years, evidenced by inclosure, cultivation, or any use and occupation so notorious as to attract the attention of every adverse claimant, and so exclusive as to prevent actual occupation by another, will give title by prescription. Code, §§ 85-403, 85-406. The jury here was authorized to find that the fence on the line contended for by the protestant, in its various forms of hedgerow, old rail fence, and wire fence, had been in its present location for a period of almost 50 years; that a part of the land so enclosed was in cultivation to the fence, and had been in cultivation more than 20 years by predecessors in title to the applicant, who had mended the fence, cut timber, and performed other acts of ownership. This is sufficient to establish title by adverse possession. The applicant, however, contends that in 1934 the line was in fact unascertained, indefinite, and in dispute, and that at that time he and the then owner of the adjoining lands agreed upon a dividing line. Examination of the record shows that any agreement reached at that time could have affected only the 53-acre tract of land then owned by the applicant, the northwest line of which divided his lands from those of both Caulley and Pierce. It could not affect the boundary line on the 93-acre tract (which comprises practically all of the land in dispute), because at that time Payne was not the owner of this tract and did not buy it until some five years later. As stated in Farr v. Woolfolk, 118 Ga. 277 (2) ( 45 S.E. 230): "Independently of the rule laid down in the Code section, a parol agreement between coterminous proprietors, that a certain line is the true dividing line, is valid and binding as between them, if the agreement is accompanied by possession of the agreed line or is otherwise duly executed, and if the boundary line between the two tracts is indefinite, unascertained or disputed." Agreement or acquiescence between a landowner and one not the owner of adjoining lands, however, is not conclusive, the parties not being coterminous owners. See Shahan v. Watkins, 194 Ga. 164, 168 ( 21 S.E.2d 58). It is a declaration by a person in possession in disparagement of his title, under Code § 38-308, and its probative value is for the jury. Threlkeld v. Anthony, 36 Ga. App. 227 ( 136 S.E. 285).
As to the northwestern boundary line of the 53-acre tract, at the northern corner of which Milton Caulley, according to the testimony of the applicant, drove a lightwood stake and agreed that the district line was the boundary — it appears from the plat that the district line and fence cross in the form of an elongated X, and that the agreement to accept the line rather than the fence would have given the applicant a small triangle of land and given Caulley a similar triangle of land. If this agreement were in fact duly executed, the line fixed by the jury would be inaccurate as to this portion of the boundary. There is no cultivation in this area. The county surveyor testified as follows: "I ran the line which the processioners told me to run on the original bearing, I ran where the original line was run. We didn't find any marks or anything else that showed a line established through there. On the line of the old hedgerow and fence, referring to plat, there was an oak tree chopped on two sides and sixteen inch chops all up and down the line at the points indicated. But on the line we set up and established and the processioners agreed to there is no human being could go there with eyes and see a sign of any line through there. The original line would have taken a little part of that field across from the pond. . . I did not find a chopped tree on the old line set up by the processioners. I did not find a sign of where a fence had ever been on it. There was not any sign of where a line had been established through there. The only thing I found was that stob and I ran by that stob."
In Clark v. Hulsey, 54 Ga. 608 (5), the first case dealing with the establishment of a disputed line by agreement, it appears that the plaintiff in reliance upon the agreement built and maintained a fence as execution thereof. In Cleveland v. Treadwell, 68 Ga. 835, a dividing line was agreed on and marked. In Wood v. Crawford, 75 Ga. 733, (3), the agreement was accompanied by actual possession. In Hart v. Carter, 150 Ga. 289 ( 103 S.E. 457), cited by the applicant, it is held that "Actual occupancy to the agreed line by cultivation or the erection of fences on the line is not indispensable to the due execution of the parol agreement." In that case it appears that the line was marked by chops in trees from one end to the other. See also Shiver v. Hill, 148 Ga. 616 (1) ( 97 S.E. 676); Barfield v. Birrick, 151 Ga. 618 (2) ( 108 S.E. 43); Tietjen v. Dobson, 170 Ga. 123 (4) ( 152 S.E. 222); Hatch v. Miller, 179 Ga. 629 ( 176 S.E. 631); Bradley v. Shelton, 189 Ga. 696 ( 7 S.E.2d 261); Buffington v. Carter, 199 Ga. 811 (4) ( 35 S.E.2d 440); Robertson v. Abernathy, 192 Ga. 694 ( 16 S.E.2d 584); Wright v. Anthony, 205 Ga. 47 ( 52 S.E.2d 316); Gornto v. Wilson, 141 Ga. 597 (2) ( 81 S.E. 860); Osteen v. Wynn, 131 Ga. 597 (2) ( 62 S.E. 37). In all these cases it appears that the agreement, to be "duly executed," must at the very least mark out or blaze a boundary so that it can be physically identified by the parties. An agreement not so executed does not so fix and establish a boundary line. See Cagle v. Brady, 69 Ga. App. 162 (2) ( 24 S.E.2d 865). Here, the putting down of a single stake and agreeing that the district line should be the line leaves the boundary line, while easily ascertainable, still not physically ascertained; and the most that could be said for the single marker put down at that time was that it was an agreement as to a corner. The jury was authorized to find from the evidence as a whole that the protestant owned lands to the fence by reason of prescriptive title founded on adverse possession for over 20 years.
The trial court did not err in overruling the motion for a new trial as amended.
Judgment affirmed. MacIntyre, P. J., and Gardner, J. concur.