In Robertson v. Abernathy, 192 Ga. 694, 698 (16 S.E.2d 584) it is said: "it is not reversible error to merely state correctly the contentions as made by the allegations of the petition, even though some of the contentions may not be supported by the evidence."Summary of this case from Sirmans v. Sirmans
SEPTEMBER 11, 1941.
Complaint for land. Before Judge Mundy. Haralson superior court. March 12, 1941.
Price Edwards, for plaintiff in error.
Astor Merritt and W. W. Mundy Jr., contra.
Rulings on exceptions in motion for new trial after verdict for the plaintiff in action to recover land, involving disputed boundary lines and issue of prescriptive title.
No. 13765. 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 east, 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 land-lot 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 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 infra.
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 denied these averments; the defendant claiming that the tract sued for was part of lot 603, adjoining 602, and belonged to him under his purchase of the southern part of lot 603 up to the true line of lot 602.
2. On the first of these theories as set forth by the plaintiff, the general verdict in his favor, though not demanded, was authorized under the conflicting evidence, as to the location of the true original lot line.
3. As to the plaintiff's second contention, an unascertained or disputed boundary line between coterminous proprietors may be established by oral agreement, provided such agreement be accompanied by actual possession to the agreed line or is otherwise executed; or as is the basis of the plaintiff's second contention, such line may be established by acquiescence for seven years, by acts or declarations of the adjoining landowners. Code, § 85-1602. Such acquiescence, to be effective, must be "by the acts or declarations of both the adjoining landowners." Bradley v. Shelton, 189 Ga. 696 (4, a) ( 7 S.E.2d 261), and cit.; Gornto v. Wilson, 141 Ga. 597 (2), 599 ( 81 S.E. 860); Williamson v. Prather, 188 Ga. 545 ( 4 S.E.2d 140); Hatch v. Miller, 179 Ga. 629 (3), 630 ( 176 S.E. 631); Brown v. Hester, 169 Ga. 410 (2) ( 150 S.E. 556). The plaintiff's proof in support of his claim by acquiescence was testimony by one who formerly owned both the land opposite the disputed tract and the land to the north in lot 603. He testified that during his twelve years of ownership he and the plaintiff "recognized" and the witness "respected" the line as now contended by the plaintiff. But the witness further testified that before this suit he "never spoke" to the plaintiff about the line; and as to specific "acts or declarations" of acquiescence, his testimony showed only that he and the plaintiff cultivated the land on their respective sides of a ditch, which lay north of the disputed tract and formed no part of the line of that tract, according to any contention. The testimony of this witness was disputed and sought to be impeached by the defendant, by alleged previous contradictory or inconsistent statements by the witness. Accordingly, even if the verdict was authorized under the general terms of such testimony, it was not demanded, as contended by the plaintiff, on this the second theory of the case.
4. With respect to the third theory on which the plaintiff relied for recovery, "in order to acquire a prescriptive title by virtue of possession alone for twenty years, such possession must be actual, and the prescription will not extend beyond the `possessiopedis.'" Kerlin v. Southern Bell Telephone Co., 191 Ga. 663 (2), 667 ( 13 S.E.2d 790), and cit.; Code, § 85-403. The mere occasional cutting of timber will not amount to actual possession of land. McCook v. Crawford, 114 Ga. 337 (2), 338 ( 40 S.E. 225); Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80 (7), 86 ( 3 S.E.2d 91), and cit.; Wood v. Ridings, 185 Ga. 305, 306 ( 194 S.E. 533), and citations as to what constitutes actual possession.
( a) While in charging the jury it is not reversible error to merely state correctly the contentions as made by the allegations of the petition, even though some of the contentions may not be supported by the evidence ( Armour Co. v. Roberts, 63 Ga. App. 846, 12 S.E.2d 376, and cit.; Georgia Power Co. v. Sheats, 58 Ga. App. 730, 742, 199 S.E. 582, and cit.; Gledhill v. Harvey, 55 Ga. App. 322 (4), 327, 190 S.E. 61, and cit.), yet to instruct the jury on the law of a contention as to which there is no evidence, though the charge be correct in the abstract, is cause for a new trial, unless it is apparent that the jury could not have been misled. Culberson v. Alabama Construction Co., 127 Ga. 599, 602 ( 56 S.E. 765, 9 L.R.A. (N.S.) 411, 9 Ann. Cas. 507); Citizens Southern National Bank v. Kontz, 185 Ga. 131 (6), 148 ( 194 S.E. 536); Gaskins v. Gaskins, 145 Ga. 806 ( 89 S.E. 1080); Poland v. Osborne Lumber Co., 34 Ga. App. 105 (2), 108 ( 128 S.E. 198), and cit. Having charged the jury that "one of the contentions of the plaintiff is that he has had twenty-year possession of this property up to this disputed line," the court then stated the law of prescriptive title by twenty years of actual possession, in the language of the Code, § 85-406. Under the preceding rulings, and the undisputed evidence that there had been no cultivation or enclosure of the disputed tract, that it remained woodland, and that there was no act of possession thereon except the occasional cutting of timber, this instruction was unauthorized and constituted reversible error.
5. The parties to this suit being adjacent owners, the petition did not and could not seek a recovery on the theory of constructive possession by virtue of seven years actual possession under color of title, since as between such adjacent owners no prescription by constructive possession arises in favor of either. Bunger v. Grimm, 142 Ga. 448 (6), 454 ( 83 S.E. 200, Ann Cas. 1916C, 173); Carstarphen v. Holt, 96 Ga. 703 (5) ( 23 S.E. 904); Warsaw Turpentine Co. v. Fort Barrington Club, 185 Ga. 540, 544 ( 195 S.E. 755); Stewart v. Smith, 135 Ga. 390 ( 69 S.E. 540); Code, § 85-404. The court charged the law of constructive possession and prescriptive title by seven years possession under color of title. There is an exception that the charge was "misleading and confusing to the jury and caused them to make a verdict by virtue of what they believed to be color of title in the plaintiff to lot 602," and exceptions to this charge on other grounds. Whether or not the irrelevant instructions on constructive possession would constitute additional harmful and reversible error, it is unnecessary to determine, since the judgment must be reversed on the ground stated in the preceding paragraph.
6. Nor is it necessary to determine whether a reversal would be required by what might be construed to be inaccurate language in an instruction that "if any predecessors in title of either the plaintiff or defendant acquiesced and recognized the line between the property of the parties to this case for seven years, by act or declarations, that will establish the title." The exception is that the use of the italicized words tended to mislead the jury into thinking that "the act or declaration of one person adjoining a line could establish a dividing line," and that such acts or declarations must be by both landowners, and not by one alone. Bradley v. Shelton, 189 Ga. 697, supra, and cit.
7. There is no merit in the remaining exceptions to a refusal of request to charge, since those requests, so far as pertinent and correct, were covered by the general charge.
Judgment reversed. All the Justices concur.