Opinion
34150.
DECIDED NOVEMBER 8, 1952.
Distress warrant; from Wilkes Superior Court — Judge Perryman. April 24, 1952.
Stevens Stevens, for plaintiff in error.
Clement E. Sutton, contra.
Where, in a distress-warrant proceeding, the evidence failed to show that the relation of landlord and tenant existed between the plaintiff and the defendant, a verdict for the plaintiff for any sum for rent was not authorized, and the trial court erred in overruling the motion for a new trial on the general grounds.
DECIDED NOVEMBER 8, 1952.
This was a distress-warrant proceeding tried in the Superior Court of Wilkes County. The plaintiffs alleged in their affidavit that the defendant was indebted to them in the sum of $310.25, or 850 pounds of middling lint cotton for rent to 45 acres of land more or less. The defendant by counter-affidavit denied that he was indebted to the plaintiffs in any sum for rent or for anything else. Upon the trial of the case the jury returned a verdict for the plaintiffs for $25. The defendant made a motion for a new trial on the general grounds, and amended his motion by adding thereto four special grounds complaining of certain portions of the charge. The trial court overruled the motion, and the exception here is to that order.
The evidence for the plaintiffs tended to show: that the plaintiffs and the defendant owned adjoining tracts of land, which had been acquired through mesne grantees from a common grantor; that there had never been a dividing line established between their respective tracts, but each owned one-half of an original 275 acres, or 137 1/2 acres; that, after the defendant acquired his tract, the plaintiffs proposed to him that the dividing line be established, but defendant refused to co-operate in any joint undertaking to cut off his one-half of the original tract; that, during the first year that defendant occupied his land, he worked the portions in dispute with the plaintiffs' permission, and in the spring of 1951, the second year, he began to plow and work these portions for the second year; that plaintiffs again proposed a survey of the dividing line, but defendant refused to co-operate in the surveying and marking of the line; that plaintiffs then procured a licensed surveyor and commenced surveying the defendant's property to cut off from the 275-acre tract his 137 1/2 acres; that defendant appeared and objected to the starting point selected by the plaintiffs for the dividing line and showed the surveyor and the plaintiffs where he wanted them to start so as to give him water on his place; that plaintiffs told defendant that, if they took his starting point, the line would have to be so run in order to cut off 137 1/2 acres that it would cut off from the defendant much of his cultivated open land (the portions in dispute); that defendant said that this was all right, that he wanted the water and did not care about the open land; that the plaintiffs and the surveyor then used the defendant's starting point as selected by him and proceeded to mark off the dividing line between the two places, which cut off from the defendant's portion of the tract the land for which the plaintiffs claim defendant owes them rent; that defendant knew that the plaintiffs were marking the dividing line and agreed to the starting point selected and thereafter continued to cultivate the fields in question and for which the plaintiffs claim defendant owes them rent. The defendant denied that he had ever agreed to pay the plaintiffs rent or that he had agreed to the line marked out by the surveyor and the plaintiffs; and claimed that he continued to cultivate the fields in question because he claimed they were his fields and not the plaintiffs'. The defendant also introduced evidence that tended to show that the original holders of the two tracts, the father and uncle of the plaintiffs, had agreed upon a line between the tracts which included the disputed fields within the defendant's tract.
Under the view we take of this case, it is necessary to consider the general grounds only. Unless the evidence showed that the defendant entered upon the fields in question and continued to cultivate them after acknowledging the ownership as being in the plaintiffs, and also at least impliedly agreeing to pay rent for the use of the fields, there was no relationship of landlord and tenant sufficient to enable the plaintiff to maintain a distress warrant proceeding to enforce the payment of a sum of money as rent. The evidence wholly fails to show any agreement in any method provided by law between the plaintiffs and the defendant to the line as run, or that the defendant ever at any time acknowledged that the fields in question were the plaintiffs' fields and not his, or ever expressly or impliedly agreed to pay rent to the plaintiffs.
It is true that the plaintiff Rollin A. Jackson and certain witnesses for the plaintiffs testified that the defendant "agreed to the line." However, testimony to that effect must be considered in is context. The evidence showed that the defendant was present when the plaintiffs' party started to run the line separating the two tracts; that he first objected to the starting point selected and the course being run; and that after some discussion the plaintiffs' party accepted a starting point selected by the defendant and ran the line from there; that, while the defendant was in and out, so to speak, while the line was being run he never agreed to the line as finally run, but continued to cultivate the fields in question, claiming them as his own, and in the words of the plaintiff R. A. Jackson himself, holding them adversely to the plaintiffs against their claim of right.
The evidence clearly shows that the plaintiff and all of his witnesses, in testifying that the defendant agreed to the line meant merely that the defendant agreed to the starting point for the line, and they, in so testifying, were merely laboring under the mistaken idea that such agreement in and to the starting point constituted a legal agreement as to the line. Such is not the law. Where land lines are in dispute or unascertained or the parties are uncertain as to their location, adjoining landowners may establish such disputed or unascertained boundaries by one of two methods: (1) by oral agreement, if the agreement is executed by actual possession to the agreed line or by some other method such as marking or laying out the line on the face of the earth and erecting monuments thereon. Clark v. Hulsey, 54 Ga. 608 (5); Wood v. Crawford, 75 Ga. 733 (3); Farr v. Woolfolk, 118 Ga. 277, 280 ( 45 S.E. 230); Osteen v. Wynn, 131 Ga. 209 (3) ( 62 S.E. 37); Gornto v. Wilson, 141 Ga. 597 (2) ( 81 S.E. 860); Hart v. Carter, 150 Ga. 289 (1, 2) ( 103 S.E. 457); Barfield v. Birrick, 151 Ga. 618 (2) ( 108 S.E. 43); Bennett v. Perry, 207 Ga. 331 (2) ( 61 S.E.2d 501); Payne v. Green, 84 Ga. App. 689, 697 ( 67 S.E.2d 195); or (2) by acquiescence for seven years by the acts or declarations of the owners of adjoining lands, as provided by the Code, § 85-1602. While actual possession by cultivation or the erection of fences on the line is not indispensable to the due execution of such a parol agreement ( Hart v. Carter, supra, Payne v. Green, supra), nevertheless, it is clear that, where the evidence shows that one of the parties did not so occupy to the line allegedly agreed on, but permitted the other party to continue to occupy over the line claimed, and where such evidence fails to show that the agreement on the line was executed by the erection of monuments or other physical evidence of the actual location of the line by concert of the parties to the dispute, there was no evidence of a legal agreement executed within the rule announced in the cases cited above. There certainly was no acquiescence in such line under the provisions of the Code section, and no claim to that effect was made.
Since the establishment of the location of the line between the parties was a necessary prerequisite to the plaintiffs' right to recover rent from the defendant, because ownership or a proprietary right in the land in dispute was not shown to be in the plaintiff without a showing of where the land line was, the evidence failed to sustain the verdict for the plaintiff in any amount, and the trial court erred in overruling the motion for a new trial on the general grounds.
In view of what has been said above, it is not likely that the errors alleged in the special grounds of the motion for a new trial, if they are error, will recur on another trial, and for that reason the special grounds are not considered.
Judgment reversed. Sutton, C. J., and Felton, J., concur.