Opinion
35667.
DECIDED JUNE 8, 1955.
Damages. Before Judge Carpenter. Jasper Superior Court. February 7, 1955.
W. H. Key, for plaintiff in error.
J. Ben Warren, contra.
The court did not err in denying the motion for a new trial for any of the reasons assigned.
DECIDED JUNE 8, 1955.
On August 25, 1954, O. H. Banks (hereinafter called the plaintiff) filed suit against Harvey Lane (hereinafter called the defendant), to recover the value of 15,000 board feet of lumber alleged to be worth $450. The petition is in four paragraphs. Paragraph 2, describing the plaintiff's land, is admitted by the defendant. Paragraph 3 alleges that the defendant entered on this land and cut and removed therefrom a quantity of pine and hardwood timber. Paragraph 4 alleges the particular parts of the land from which the timber was cut as being "on the east side of the branch coming out of Tucker and Perry Places between the old ford and the Tucker line on the southeast side of the said Banks Mercer land," and then alleges the number of board feet and the value. Paragraphs 3 and 4 are denied by the defendant.
The defendant further alleges that he purchased the saw timber on the lands of Andrew Q. Wyatt adjoining the lands of the plaintiff, and that Jack Wyatt, father of Andrew Q. Wyatt, "pointed out the boundary lines, and he stayed within the boundaries pointed out, and no trees were cut beyond these boundaries, and he is not indebted to the plaintiff."
The case was tried before a jury, and a verdict was returned in favor of the defendant.
A motion for new trial, on the general grounds, was denied. This writ of error is to review that judgment.
We deem it necessary to quote the evidence in full, as it appears in the record, as follows:
Direct examination of the plaintiff, O. H. Banks: "During the latter part of March or the first part of April it was reported to me that Harvey Lane had located a sawmill on lands of Andrew Wyatt known as the Ezell Mobley, or Blackwell Place, and that Harvey Lane was cutting timber across the line of said place on my Mercer Place. I went down there to see Mr. Lane and Mr. Lane stated that he had bought the timber to the branch, which he contended was the line shown his cruiser, J. L. Lane, by Mr. Jack Wyatt. Mr. Lane did not give me any satisfaction as to stopping. I then went back and asked Mr. Ben D. Newton to go there the next day and show Mr. Lane or his employees the line. Mr. Newton showed them the line and Mr. Lane suggested that we have the line run, which was done, the cost being shared by plaintiff and the defendant. The line was run by Mr. C. T. Edwards and according to the line run by Mr. Edwards, it ran along the line pointed out by Mr. Ben D. Newton, crossing the branch three or four hundred feet below the rock ford. My land on the Mercer Place cut over by Mr. Lane was south of the rocky ford back towards Machen, Georgia, to the Tucker and Perry land line, being east of the branch, containing approximately 11 or 12 acres, and being the land between the line as run and agreed to by Mr. Andrew Wyatt and me as the line, and the timber cut was approximately twelve or fifteen thousand board feet according to my best estimate. I employed Mr. Ben D. Newton, an experienced sawmiller, to cruise the same by measuring stumps and tops and he cruised it between eleven and twelve thousand board feet that were cut and removed from my land. I have known this land which was formerly known as the Blackwell Place, later sold to Mr. Buck Ezell, to Mr. J. R. Mobley, to Dr. J. A. Brown and to Mr. Andrew Wyatt, (Wyatt buying from Dr. Brown's estate) and I have always known the line to be east of the branch and there were markings, such as fences, wire fences and hedgerows on the line. I have known the place all my life, forty years. The fair market value of the timber cut and removed by Lane from east of the branch was $30 a thousand, and I think $450 is a fair market value of the timber cut and removed by Lane. Mr. Lane claimed a great deal less than this and offered in settlement, $150. I refused it because I thought it was not enough and lumber on stump was selling for $30 per thousand for same and from $50 to $70 per thousand, according to size, sawed at the mill or planer mill."
Cross-examination: "The Wyatts do not owe the Citizens Bank or me anything. When Mr. Edwards came to make the survey, they first ran the line between the lands of Wyatt and Tucker and Perry on the east. Then we went up along the north line about half way. These lines were marked by fences and hedgerows and measurements were taken from the southeast corner of the north and east line back towards the branch along the Tucker and Perry line with Andrew Wyatt. Mr. Edwards then chained the line between the Weyman Taylor place that I own, the Taylor place having been surveyed and platted by the Federal Land Bank of Columbia, and Weyman Taylor, and a corner was established according to the measurements, the line being a definite hedgerow and the corner being pointed out also by Weyman Taylor. The measurement was made at a set-off to the hedgerow in order to have a place to work without cutting so many bushes along the hedgerow. When Mr. Edwards established the corner, he ran the southwest line between the Mercer place owned by me and the Andrew Wyatt land and when same was run, it ran along the hedgerow in part, hitting the wire fence which I contended was the line, and that when they reached the Perry line on the southeast side, Mr. Edwards stated to all that this was it, meaning he had surveyed the acreage called for in Andrew Wyatt's deed, or 145 acres. This line run by Mr. Edwards, surveyor, was then and there agreed on between me and Mr. Andrew Wyatt, as being the line."
Direct examination of Ben D. Newton: "I have lived at Machen and Shady Dale near this place all my life and I have known the lines between the Mercer, or Banks place, owned by the plaintiff, and the Ezell Mobley place, owned by Andrew Wyatt. I have been in the sawmill business for 30-odd years, and I purchased from Mr. Mercer Lee the saw timber on the Mercer place. I cut the timber on the Mercer place about 30 years ago, I was not shown the line by Mr. Mercer, but Mr. Mercer told me where the line was by fence and hedgerow, which I found as described by Mr. Mercer, and I cut to this line, and I cut on the east side of the branch south of the rocky ford back towards the Perry line over approximately 10 or 12 acres. There were 2 or 3 acres of bottom land in cultivation by tenants of Mr. Lee Mercer at the time. I cut to a line between the two places which was marked by a fence and hedgerow. From my own knowledge and markings, I knew the line as directed by Mr. Lee Mercer. I pulled the chain for the survey of the line run by Mr. C. T. Edwards, surveyor, and the line run by Mr. C. T. Edwards, surveyor, was along the line described by Mr. Mercer and to which I sawed the timber when I bought same from Mr. Mercer. On the request of Mr. Banks, I counted stumps of trees that I found cut on what I know as the Mercer place between the branch and the line run by Mr. Edwards, which I found to be between 135 and 140 trees and would average 13 or 14 inches in diameter and would also average about 3 twelve foot cuts to the tree. That my estimate, as the tops had been dragged around, was the best estimate I could make, and I know that a minimum of 11 or 12 thousand board feet were cut and removed by Mr. Lane on the east side of the branch and the line established by Mr. Edwards. I marked the stumps, I counted with a blue pencil."
Cross-examination: "I was reluctant in getting mixed up in this dispute but I did consent to go down and show the line and did check the stumpage of the recent cutting and removing of the timber. I was one of the chainmen when Mr. Edwards undertook to find the south line and the northwest corner from which he ran the line between the Mercer and Wyatt place and the line run by Mr. Edwards, the surveyor, hit the old hedgerow and fence described to me by Mr. Mercer and where I cut to in my purchase from Mr. Mercer. The line run by Mr. Edwards was approved by Mr. Banks and Mr. Andrew Wyatt. Mr. Lane did not say anything, but walked off, shaking his head."
Direct examination of Dewey Cook: "I have been engaged in sawmilling, dairying, cattle raising and farming. I know the Ezell Mobley place now owned by Andrew Wyatt and also the Mercer place owned by O. H. Banks. I have cut the timber on both places. I first cut the timber from the Ezell Mobley place now owned by Andrew Wyatt, which I bought from Dr. J. A. Brown. When I bought the timber from Dr. Brown on the Wyatt or Ezell Mobley place, I asked Dr. Brown, the owner, to paint the line between the Wyatt place and the Mercer place, the Mercer place at that time being owned by W. H. Key. It was about 13 years ago and Dr. Brown marked the line between the land he owned and the Key or Mercer place with red paint and it was on the east side of the branch, about 10 or 11 acres between the branch and the Brown line. There was an old fence at that time along and near this line marked by Dr. Brown. I got permission from W. H. Key to run a wire fence down to the branch to pen my mules while sawing. After I finished sawing the timber on the Brown place now owned by Wyatt, I purchased the timber on the place known as the Mercer place then owned by W. H. Key, and I cut on my purchase from W. H. Key on the east side of the branch an acreage to the line pointed out and marked by Dr. Brown, about 10 or 12 acres on the east side of branch."
Cross-examination: "I have not seen the line run by Mr. Edwards, the surveyor. Josiah Pressley lived on the place at the time. I sawed Dr. Brown's timber."
Direct examination of Weyman Taylor: "I am 72 years of age and was born and raised on the land now owned by Mr. Banks. I formerly owned the land on the north side of the Ezell Mobley or Blackwell place now owned by Mr. Wyatt. Mr. Mercer bought about 180 acres of land from lawyer Kilpatrick and I rented and worked this land of Mr. Mercer's 6 or 7 years. I worked about 2 or 3 acres of bottom land on the east side of the branch south or southeast of the rocky ford towards the Perry line. I have known this land all my life, at least 55 or 60 years, and I have known that the line as run by Mr. Edwards to be the line between the Mercer, now Banks, land and Mr. Wyatt, formerly the old Blackwell place later owned by Mr. Buck Ezell, Mr. J. R. Mobley and Dr. J. A. Brown; Mr. Wyatt bought it from the estate of Dr. J. A. Brown. That the lands on both places have been cut over and at places there is heavy undergrowth, but the line run by Mr. Edwards follows and hits at places along the old hedgerow that I have known to be the line for 55 or 60 years." (Plaintiff rests.)
J. L. Lane, brother of Harvey Lane, called for direct examination: "I have cruised timber for my brother for several years. I cruised the timber on the Wyatt place, formerly known as the Ezell Mobley land. The lines were shown me by Mr. Jack Wyatt, father of Andrew Q. Wyatt, the owner. Mr. Wyatt said the branch was the line on the west or southwest side beginning at a forked sycamore on the branch bank, thence in straight line to Rocky Ford. He said that if we did not cut anything beyond or west of the branch we would not be over on Mr. Banks. I did not see evidence of any line east of branch, where Edwards later ran one."
Harvey Lane, called for direct examination: "I heard that Mr. Jack Wyatt, through his wife, Mrs. Wyatt, that their son wanted to sell his timber on his place purchased from Dr. Brown's estate known as the Ezell Mobley land. Mr. Jack Wyatt went with my brother, J. L. Lane, to show him the line. I do not know whether Mr. Jack Wyatt was the agent of his son Andrew Wyatt, to sell the timber, but after my brother went with Mr. Jack Wyatt, they told me that they would sell all the timber on the place for $2,000. I then came and got Mrs. Allen to write me up a contract and then I found out that Mr. Andrew Wyatt had been transferred from Griffin to Bishop. I went to Shady Dale to see him early Monday morning but found out he had already gone to Bishop and I went to Bishop to see him, and Mr. Andrew Wyatt, after reading the contract, said he was willing to sign and we began looking for a notary public to witness the paper. We found one about a mile from where I found him, and we went there and he executed the timber lease and I paid him $2,000. I then moved my sawmill and began cutting timber and had been cutting four or five days when Mr. Banks came down late one afternoon and told me that I was cutting over the line. I do not know the line but I bought the timber from Wyatt to the lines pointed out by Mr. Jack Wyatt to my brother, J. L. Lane, this fact being known by Andrew Wyatt when he accepted my check for $2,000."
Cross-examination: "I dealt with Mr. Andrew Wyatt as he was the owner of the land, but his father, Jack Wyatt, had shown us the lines. I do not know whether Mr. Andrew Wyatt had authorized his father as his agent but was told by him that he could sign the contract himself, however. I did not deal with him, because I thought it best to deal with his son, who owned the place. I don't think that $30 per thousand was the value of the timber at that time. Timber at this time was selling a great deal less than $30. It was not worth $30 at that time."
Redirect examination: "Andrew Wyatt knew I had dealt with his father, Jack Wyatt as to lines and he accepted my check on the basis."
Mr. J. L. Lane recalled, for direct examination: "Mr. Jack Wyatt showed me the lines and stated to me that the branch was the west line. He also showed me the Perry and Tucker line on the east or southeast and the line between Wyatt and Perry on the northeast corner where there was a fence and also the line next to Mr. Bank Taylor's place. I do not know how much was cut between the line as run by Mr. Edwards and the branch. It was a great deal less than 15,000 feet, probably 5,000 feet. After Mr. Banks came and Mr. Newton showed the line, we stopped cutting and there was left an acre or two south of the ford that we did not cut. I saw no evidence of any old line east of the branch where Edwards later than a line."
Robert Lane on direct examination: "I was in charge of the cutting for my brother, Harvey Lane. There was cut between the line as run by Mr. Edwards as the line and the branch south of the ford in two places around 5 or 6 thousand feet in all, in my opinion. Mr. Jack Wyatt came there when I started cutting and he said for me to cut down to the branch which was the line."
Joe Pressley, on direct examination: "I have known the Mobley place now owned by Mr. Andrew Wyatt for about 35 years, in fact I lived on this place myself for about 20 years, having first moved there about 25 or 30 years ago when I rented this place from Mr. Mobley. When I moved there Mr. Mobley showed me the boundaries and pointed out the branch as the line between the Mobley place and the Mercer place over next to the Perry line. I worked this place 4 or 5 years and then moved away for 3 or 4 years, then moved back and rented the Mobley place first from Mr. Mobley and then from Dr. J. A. Brown for 16 or 18 years. During all the time that I farmed the Mobley place I either cultivated or fenced part of the land all the way to the branch and built my hog pasture, which extended to the branch. This was the line shown me by both Mr. Mobley when I first moved there in the twenties.
"I went with Mr. Lane and Mr. Warren, his attorney, to the Mobley place a day or two before this court met and they showed me a new line that had been run upon the hill about 175 yards in place above the branch on the Mobley lands, east of the branch. Mr. Warren showed me an iron stake that had just been driven up on the Perry fence line where this new line touched it, and he asked me if this was the line between the Mobley and the Mercer place as I had always known the line. It was not the true line as I had known it for 30 years and this line was put up by Mr. Edwards along an old pasture fence line that I had had when I lived on this property which pasture extended to the branch. When Mr. Andrew Wyatt bought this property he and his father, Mr. Jack Wyatt, asked me to show them the boundaries since I had lived on the place for so long. I showed them the boundary that Mr. Mobley had shown me which was the branch beginning at the forked sycamore tree on the Perry line and running in a straight line in a northerly direction straight through the rocky ford."
Cross examination: "I am about 82 years of age. I worked on the railroad part time and I have been farming. I first rented this from Mr. Mobley about twenty years ago. I do not know what year. I rented it from Mr. Mobley at first. There were two Mr. Mobleys. One old man and one I know had a nub finger. The one that pointed out the line to me was the one with the nub finger. He went around the whole place with me and showed me the line, and he said that the branch was the southwest line. I later rented the place from Dr. Brown and Dr. Brown agreed to sell me the place for $1,500. He later sold $600 worth of timber when he said he would give me credit on the price. Dr. Brown died and I had no writing of the sale, and I moved off after his death. I do not know the lines other than what was told me, but I did fence in four or five acres next to the branch south of the rocky ford. I also went across the branch in one place, below or south of the ford."
Redirect examination: "I walked the line as run recently by Mr. C. T. Edwards after this dispute come up, and this line is more than 150 or 200 yards east of branch, which I have always known as the line."
Jack Wyatt, put up by plaintiff, testified as follows: "I showed Mr. J. L. Lane what I thought was the line. I told Mr. Lane that I did not know but Joe Pressley told me the line went to the branch beginning at a forked sycamore tree. I did advise him to have the line run. I did not have any authority and was not responsible for the line because I had nothing. I was not the agent of my son. I just showed him what I was told to be the line by Joe Pressley."
Cross-examination of Jack Wyatt: "I know my son wanted to sell timber on the Mobley land and since he was working over at Griffin at the time Mr. Harvey Lane wanted to look at the timber to figure on it, I went with Mr. Harvey Lane's brother, Mr. J. L. Lane, to the Mobley place and I showed him as the western boundary of the Mobley place next to Mr. O. H. Banks a straight line running from a forked sycamore tree on the bank of the branch of the Perry fence line in a northerly direction to the rocky ford and told him that this was the only line that I knew which had been shown to me by Joe Pressley, an old negro who had lived on the Mobley place and farmed it for more than twenty years. Mr. Lane cruised the timber to the branch which I had shown him. I did not own the place but went there for my son Andrew Wyatt who did own it. I believed at the time that the branch was the line, but later Mr. O. H. Banks stopped Mr. Lane from cutting the trees, contending that the line was upon the hill about 150 yards or more east of the branch. After he and Mr. Lane decided to get C. T. Edwards to come over and locate the line I went down there and after Mr. Edwards ran the line up on the hill it looked like I had been mistaken and Joe Pressley had been mistaken about the branch being the boundary line between my son's property and the property of Mr. Banks. This mistake, however, was after Mr. Lane had cut to the branch which I had shown his brother, and after Mr. Harvey Lane had paid my son for this timber. I had not been expressly authorized by my son to act as his agent in showing these lines to Mr. Lane but I showed him the only boundary line which my son and I knew what had been shown to us by Joe Pressley. When my son accepted Mr. Lane's check for the timber on the Mobley place he knew that I had shown the timber and the boundary lines to Mr. Lane. After the Edwards line was run to settle the dispute between Mr. Banks and Mr. Lane my son agreed to the correctness of this line. I do not know how many acres there is between the Edwards line and the branch and I do not know how much timber was cut by Mr. Lane, between the branch and the Edwards line, but I suppose Mr. Lane thought that he had bought to the branch from my son. Mr. Lane did not cut any timber beyond the line which I had shown him.
"My son's deed calls for 145 acres more or less and Mr. Edwards' line was run in such a way as to cut off exactly 145 acres. If this line which Mr. Edwards ran is correct, then the line along the branch from the forked sycamore tree along the branch to the rocky ford which I showed Mr. J. L. Lane when he cruised this timber was wrong."
1. It is conceded by both parties that the only issue before this court is whether or not there is any evidence to support the verdict, the plaintiff contending that there is none and that the evidence under the law applicable to this case demands a verdict for the plaintiff. The defendant on the other hand, contends that, while the evidence is conflicting, there is sufficient evidence to support the verdict.
We have read the evidence and have reached the conclusion that there is sufficient evidence to support the verdict, and that the court did not err in denying the motion for a new trial, based only on the statutory grounds. In our opinion the law, under the facts of this case, supporting the view which we have above announced, is found in the Code, § 85-1602, as follows: "General reputation in the neighborhood shall be evidence as to ancient landmarks of more than 30 years standing; and acquiescence for 7 years, by acts or declarations of adjoining landowners, shall establish a dividing line."
In Ehrlich v. Mills, 203 Ga. 600, 602 ( 48 S.E.2d 107) the Supreme Court said that acquiescence for 7 years, by acts or declarations of adjoining landowners, shall establish a dividing line. See also Bennett v. Perry, 207 Ga. 331 (2) ( 61 S.E.2d 501).
The testimony of one witness, Josiah Pressley, was to the effect that he had known the land in question for about 30 years; that the line had been known to be the line claimed by the defendant; and that he had pastured and cultivated the land for more than 20 years according to the line claimed by the defendant. There is other evidence in the record, quoted hereinabove, to the effect that there was an acquiescence for 7 years by acts and declarations of adjoining landowners that the line claimed by the defendant was established as the dividing line in question. There are other authorities sustaining the verdict of the jury, which we do not deem it necessary to cite, since a careful reading of the evidence and the authorities already cited is clear on this point.
2. We are aware that the evidence in many respects is in dispute, but the evidence and the weight of the evidence are questions for the jury, and the jury resolved the issues against the plaintiff. Counsel for the plaintiff, after calling attention to various excerpts from the evidence, contend that the evidence submitted by the plaintiff overshadowed, eliminated, and completely overcame the evidence on behalf of the defendant, to the extent that a verdict was demanded on behalf of the plaintiff. Our attention is called by the plaintiff particularly to the evidence of Pressley, and it is in effect contended that, if his evidence was admissible for any reason, such evidence does not come under the definition of "traditionary reputation," and the present-day reputation as to the boundary line is not admissible, and the case of McAfee v. Newberry, 144 Ga. 473 (1) ( 87 S.E. 392), is cited as authority therefor. There is further contention by the plaintiff that the testimony of Pressley was hearsay, and Rocker v. DeLoach, 178 Ga. 480 ( 173 S.E. 709), is cited as authority therefor. We do not think these decisions are applicable to the facts of this case. The evidence of Pressley was to the effect that he himself knew the boundary line because he was for more than 30 years the only tenant on the Mobley Place, now owned by Wyatt, from whom the defendant purchased the timber. Neither do we find there is any application of the following cases:
Cobb v. Battle, 34 Ga. 458; Taggart v. Savannah Gas Co., 179 Ga. 181 (1) ( 175 S.E. 491); Georgia Ry. c. Co. v. Harris, 1 Ga. App. 714, 717 ( 57 S.E. 1076); Armour Co. v. Gulley, 61 Ga. App. 414 ( 6 S.E.2d 165); Southern Timber Co. v. Bland, 32 Ga. App. 658 ( 124 S.E. 359); McSwain v. Estroff, 34 Ga. App. 183 (2) ( 129 S.E. 16); Slater v. State, 44 Ga. App. 295, 297 ( 161 S.E. 271); and Code § 38-301. In view of what we have said, under the evidence of this case we deem no further comment necessary.
The court did not err in denying the motion for a new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.