Opinion
29986.
DECIDED MARCH 19, 1943.
Processioning; from Cherokee superior court — Judge Hawkins. October 31, 1942.
H. E. Cline, for plaintiff. A. J. Henderson, for defendant.
1. An unascertained or disputed boundary line between two coterminous proprietors may be established by oral agreement if accompanied by actual possession up to the line, or when the agreement is otherwise executed, such as by the marking of the line by monuments, stakes, or blazes, by both parties to the agreement; or it may be established by acquiescence by acts and declarations for seven years. Tietjen v. Dobson, 170 Ga. 123 ( 152 S.E. 222, 69 A.L.R. 1408), and cit,; Swinson v. Jones, 66 Ga. App. 598 ( 18 S.E.2d 646). However, such a line may not be established by an oral agreement that a line which is not the true line, and which is already marked, shall constitute the line between the parties, for the reason that it violates the statute of frauds, and because it is not by such agreement alone executed by the overt acts of the parties. Miller v. McGlaun, 63 Ga. 435.
2. In this case, while there was evidence that the parties orally agreed on a line that was already marked, there was no evidence that the parties remarked the lines in any way, or that either went into possession up to the line, or that the line so agreed on was established by acquiescence for seven years, evidenced by acts and declarations, or that the agreement was otherwise executed. The judge did not err in charging the jury that there was no evidence that the agreement as to a line was executed, and that the principle of law that a line could be established by agreement was not applicable to this case.
3. The jury was authorized to find that the line as marked and set up by the processioners and surveyor was the correct line, and to find in favor of the applicant against the protestant.
4. The court did not err in overruling the protestant's motion for new trial.
Judgment affirmed. Stephens, P. J., and Sutton, J., concur.