Opinion
14830.
MAY 3, 1944.
Injunction, etc. Before Judge W. E. Thomas. Colquitt superior court. December 13, 1943.
Clifford E. Hay, for plaintiff in error.
Hoyt H. Whelchel, John T. Coyle, contra.
1. In this suit by the owners of a lot of land located within the corporate limits of a city against the owner of an adjoining lot to enjoin a trespass, to establish a dividing line, and to have title to the land up to the dividing line decreed in the petitioners, the provisions of the Code, § 85-1602, in reference to acquiescence in a dividing line are applicable, there being evidence of acquiescence by declarations and acts of the owners for more than seven years; and the court did not err in charging on acquiescence as provided in the Code section. The verdict for the petitioners was authorized by the evidence.
2. Though there was no evidence rendering the Code, § 85-1601, applicable, the exception to the portion of the charge embracing that section, on the ground that it was not applicable and was confusing to the jury, but failing to show in what manner the charge was confusing and the resulting injury to the movant, shows no reversible error.
3. The court did not err, as contended by the movant, in refusing to make direct and unequivocal answers to inquiries by the foreman of the jury, when they returned to the court-room for further instructions, as to whether or not they would be permitted to fix the dividing line according to a plat in evidence, and whether they would be permitted to split the difference between the parties. The court responded to the inquiries by charging the jury that they might find for either party as prayed in their pleadings, or that they might find in part for the petitioners and in part for the defendant according to the evidence as the jury found it to be. To have answered the inquiries directly would have constituted an intimation of opinion as to what the evidence was in violation of the Code, § 81-1104.
4. Where a witness had previously testified that in 1916 the defendant told the witness that a certain fence was the line between her lands on the south and the lands of the petitioners on the north, his further testimony that said fence is the south side of the petitioners' land is not subject to the objection that it is an opinion or a mere conclusion of the witness.
No. 14830. MAY 3, 1944.
This suit was brought by the trustees of Moultrie Methodist Church, acting in their capacity as such trustees, against Mrs. M. J. Veal. The petition alleged that the petitioners are the owners and are in the possession of a tract or lot of land in the City of Moultrie described as follows: Beginning at a point 100 feet south of the northwest corner of block No. 109 according to the map of the City of Moultrie made by O. H. Land in 1930, and from said point runs east parallel with the south margin of Fourth Avenue southeast, a distance of 155 feet to the lands of Mrs. Mollie Taylor, thence south parallel to the east margin of First Street southeast, a distance of 54 feet to a fence separating this land from the lands of Mrs. Mattie J. Veal, thence west along said fence and line thereof if extended to the east margin of First Street southeast, thence north along the east margin of First Street 54 feet to the point of beginning. The petition further alleged that Mrs. Mattie J. Veal is the owner of the land adjacent to and lying south of the described church property, and that the true dividing line is marked by a fence which stands along the south line of the church land, running along the southeast corner of this land approximately 25 feet; that the southwest corner of the church land is marked by the south terminus of a cement sidewalk which runs along the west side of the church's land; that the church, as the owner of the land abutting on the sidewalk, paid for the paving thereon more than twenty years before this suit was brought; that the dividing line is the fence, and an extension of the fence to the street, and was established as such by acquiescence for more than seven years by the adjacent owners; that the church has recently constructed a new parsonage on the described land, and the driveway to the garage runs along and near the dividing line; and that the defendant is trespassing upon land belonging to the church by driving stobs so as to interfere with the use of the driveway to the garage. Other acts of trespass were alleged; and the petition prayed that the trespassing be enjoined, that the dividing line therein described be established as the true dividing line, and that title to all the land north of said line be decreed in the petitioners.
The defendant by answer denied the material allegations of the petition and by cross-action set forth title by deeds of both the petitioners and the defendant to their respective lands as follows: The defendant by deed dated in 1895 acquired title to a tract in the southwest margin of block 109, measuring 150 feet by 150 feet; and by deed in 1897 acquired a tract in the southeast corner of block 109, measuring 150 feet. It was also alleged that the petitioners by deed dated February 23, 1915, acquired a tract in the northwest corner of block 109, measuring 150 feet east and west by 90 feet north and south; and by another deed dated the same day acquired a tract in the same block, described as a strip of land lying adjacent to and south of the tract described in the first deed and measuring 150 feet east and west and 60 feet north and south, and providing that said tract was bounded on the south by the lands of Mrs. M. J. Veal; and by another deed dated April 6, 1934, acquired a strip of land on the east side of the land described in the above two deeds measuring 5 feet east and west and 150 feet north and south. The defendant prayed for dissolution of the interlocutory injunction; for injunction restricting the petitioners from trespassing upon her land south of the line shown by the deeds; and for a writ of possession to that part of the south half of block 109 now claimed by the petitioners, the same being all the land in said block south of the land described in the three deeds to the petitioners, as therein set forth.
Certain documentary evidence was introduced, including all the deeds described in the defendant's cross-action, together with three photographs identified as being pictures of the premises involved; two plats of block 109 showing the distance north and south across said block from sidewalk to sidewalk to be 304.4 feet; a paving fi. fa. issued in 1914 by the City of Moultrie against the defendant for paving that part of First Street southeast adjacent to the defendant's land, and directing that the same be levied on the land described as 150 feet by 150 feet; an entry of levy thereon describing the land as it was described in the fi. fa.; a security deed dated December 7, 1916, from the defendant to Ashley Trust Company, conveying a tract of land described as fronting on First Street southeast 75 feet and extending east 150 feet, and bounded on the north by the lands of the Methodist Church, on the south and east by other lands of the grantor; and another deed from the defendant, purporting to have been executed pursuant to an order of court.
One of the witnesses, J. S. Harris, testified as follows: He was familiar with the church property and the property of Mrs. Veal south of it. He knew the church property in 1912 when the old parsonage was there. It was built in 1912 and pushed to the back of the lot when the new parsonage was built in 1939. He had known the property since 1912. The dispute as to the land line arose during the construction of the new parsonage or shortly thereafter. He has known something about the fence on the property over a period of years. There is a portion of the old board fence on the line running from east to west for a distance of 10 to 15 feet. They put a fence along the old line and joined it with the old fence now standing and extended it to the edge of the paved sidewalk. This was the chain fence from the pavement to the old fence. At that time the old fence was about 30 to 35 feet. The old fence stopped at the front end of the garage as it is shown in a photograph. The other fence ran east from that point. The church contends that the dividing line is at the terminus of the paved sidewalk. The photograph was made looking west along the dividing line. The old fence shown in the picture is still there except a portion around the house. In 1916 he, as agent for Ashley Trust Company, made a loan to the defendant on her land immediately south of the church land described in the petition. In taking her application for the loan and in making an inspection of the property, her property line was pointed out to him. In 1919 and 1922 he made two other loans to the defendant. She pointed out to him the line between these properties. The old fence was the line and a good portion of it was then standing. It was an old picket fence. "At that time in 1919 practically all of the fence was standing, from this point [indicated on the picture] to the edge of the sidewalk on the property line up to the edge of the pavement. The fence disintegrated panel by panel. It was there in 1914 and 1915 and on through 1925." Since 1925 he could not tell when the last of the fence fell. "That picket fence was not the south property line of the church." With reference to the old picket fence, it started about the west corner at the edge of the pavement and ran a line down and connected with the old fence shown on the photograph. That was the line the defendant pointed out to the witness. The church has been using that property as a parsonage for approximately twenty-five years. Mrs. Veal tore down the chain fence and put stobs 4 or 5 feet inside the church land. The pastor could not drive his car between the stobs and the parsonage. She also planted cactus or century plant, prickly stuff along there, which prevented driving in. When Mr. Taylor lived there, he used the land north of the fence. He used it as a yard, a garden, and a driveway. When the witness made the first loan in 1916, the defendant told him where the property lines were, otherwise he could not have known what property he was making the loan on. In the loan deed, which the witness did not draw, the description follows that in the defendant's chain of title.
C. C. Taylor testified for the petitioners, that he lived on the church property as its tenant in 1913, 1914, and 1915. He used all the land north of the old fence. He built on the church land a house for his car, using the line fence as one side of the car-house. He used this car-house from the time he lived there and no one else used it. The defendant neither used any land north of the fence during the time he lived there nor complained of his using it. The fence went all around the defendant's property. The Piney Woods Hotel was fenced, and he knew this fence was where the old Piney Woods Hotel fence was.
Walter Blasingame, a witness for the petitioners, testified that in 1898 he lived at the Piney Woods Hotel, which was located on the land now owned by the church, and that the hotel was entirely enclosed by a picket fence. A portion of the fence was on the south side of the property now owned by the church, and was located on a line with the end of the pavement on the sidewalk.
A witness who made two plats, which were in evidence, testified that the plat of March 27, 1940, measured block 109 from sidewalk to sidewalk, and that the other plat of October 3, 1942, shows the distance of the block from center of the street to center of the street.
The defendant testified that she acquired title, as shown by deeds introduced in evidence, to the southern portion of block 109, and that her tract measured 150 feet north to south by 300 feet east to west. She went immediately into possession, and has remained continuously in possession since the date of her deeds. She built the fence which the petitioners claim is the dividing line before 1900, and located it far enough on her own land to leave room between the fence and her north land line to drive a wagon. She has tried to prevent the petitioners from trespassing upon this strip of land, and her tenants residing on her land have used the strip as a driveway. She is 70-odd years old and can hardly hear.
Sam Harrell, a brother of the defendant, testified that just before the construction of the new parsonage on the church property, M. L. Lee, a trustee of the church, requested him to induce his sister, the defendant, to sell the church a part of her lands adjoining the church property. Lee said that the building committee had other lots in view, but if they could get a strip from Mrs. Veal, they would build there, and unless she would sell, they would not have room for a driveway and could not build on the church land. Lee did not say how much of the defendant's land the church wanted. Harrell was not familiar with the driveway, but testified that the defendant's tenants could get to their garage through an open space north of the tenant house and that people in both houses had the use of the driveway.
Ben Cato testified that about fifteen years ago he lived in the defendant's house for five years. He had a garage in connection with the dwelling and kept an automobile, and he drove straight into his garage from First Street.
There was testimony that the sidewalk on the north side of block 109 ran in a northerly direction, and that it does not actually mark the property line. By agreement of the parties, the jury was permitted to go upon the premises in dispute and to inspect the same.
A verdict was returned in favor of the petitioners. The defendant excepts to the judgment overruling her motion for new trial.
1. The verdict for the petitioners was authorized by the evidence, only if acquiescence by acts or declarations of the adjoining land owners established the dividing line, as provided in the Code, § 85-1602. As to acquiescence by the defendant in this line, the evidence authorized a finding that in 1916 the defendant by declarations acquiesced therein, and was sufficient to authorize a finding that the petitioners, by acts for more than seven years, acquiesced in that line as being the dividing line between the properties. Therefore the evidence was sufficient to show the establishment by acquiescence of the line found by the jury as the true dividing line. Catoosa Springs Co. v. Webb, 123 Ga. 33 ( 50 S.E. 942); Osteen v. Wynn, 131 Ga. 209 ( 62 S.E. 37, 127 Am. St. R. 212); Zachery v. Hudson, 138 Ga. 85 ( 74 S.E. 768); Gornto v. Wilson, 141 Ga. 597 ( 81 S.E. 860); Hailey v. McMullan, 144 Ga. 147 ( 86 S.E. 315); Shiver v. Hill, 148 Ga. 616 ( 97 S.E. 676); Brookman v. Rennolds, 148 Ga. 721 ( 98 S.E. 543).
But the movant strongly contends that the rule declared in the Code, § 85-1602, has application only in processioning proceedings of rural land, and has no application in this case, where title to land located within the corporate limits of a city is to be adjudicated. In support of this position counsel cites Christian v. Weaver, 79 Ga. 406, 409 ( 7 S.E. 261); Standard Oil Co. v. Altman, 173 Ga. 777 ( 161 S.E. 353); Smith v. Bailey, 183 Ga. 869 ( 189 S.E. 905); Bradley v. Shelton, 189 Ga. 696 ( 7 S.E.2d 261); Shahan v. Watkins, 194 Ga. 164 ( 21 S.E.2d 58). There is language in some of the opinions in these cases that would appear to support the movant's contention, but a fair analysis of each case demonstrates that it does not support it. The Christian case expressly states that the question was not there involved, and that the case was decided upon another point; and this court there said that its statement that the processioning statute applied only to rural land and not to city lots was made for the purpose of making known the court's view as to the construction of that law. Therefore the statement was clearly obiter dicta and constitutes no legal ruling on the question. The Standard Oil Company case involved a charge containing the provisions of the Code, §§ 85-1601, 85-1602, and 85-1603, which were lumped together; and while it was there ruled, after citing the Christian case with apparent approval, that the charge was erroneous, it was further stated in the opinion that some of the law embraced in the charge was applicable both to cases of processioning and to cases involving title to land, and the only portion of the charge specified in the opinion as erroneous was that embracing § 85-1603. The damage in this part of the charge was declared to lie in the fact that it caused the jury to believe that adverse possession for seven years, despite lack of paper title, would give good title. Under the Code, § 85-406, possession, in the absence of color of title, must be continuous for a period of at least twenty years before such possession can ripen into a prescriptive title. That opinion points out the difference in the questions for determination by processioners and the questions involved in suits to recover land. Processioners determine the location of lines as they actually exist, and not lines as they ought to be. Suits for the recovery of land require juries to fix lines as hey ought to be. See Amos v. Parker, 88 Ga. 754 ( 16 S.E. 200); Bowen v. Jackson, 101 Ga. 817 ( 29 S.E. 40); Crawford v. Wheeler, 111 Ga. 870 ( 36 S.E. 954); Walker v. Boyer, 121 Ga. 600 ( 48 S.E. 916); Wheeler v. Thomas, 139 Ga. 598 ( 77 S.E. 817); Boyce v. Cook, 140 Ga. 360 ( 78 S.E. 1057). The Smith case, conceding on the authority of the Christian case, that processioning statutes are inapplicable to the determination of boundaries of coterminous lots located in cities or towns, ruled that ejectment was a proper remedy, where the defendant, an adjacent owner of city land, had by encroachment taken over the petitioner's land. The ruling simply states that processioning proceedings under the law were inapplicable to the city property in that case. Nothing was there decided which would prevent the rule of law, declared in the Code, § 85-1602, as to the establishment of a dividing line by acquiescence, from being applied in a suit for land where the evidence shows such acquiescence, and the paper title of the litigants embraces the land to the line thus established. While in the Bradley case it does not appear that title was directly involved, the suit sought to enjoin a trespass which indirectly involved title, and it was there held that the acquiescence rule stated in § 85-1602 was applicable. The Shahan case held that the acquiescence rule in § 85-1602 was inapplicable to the facts in that case, where it affirmatively appeared that the party seeking to have the rule applied had no title whatever to the land involved. In that situation in order to acquire title by possession, his possession must have continued for twenty years under the Code, § 85-406. He could not acquire title by adverse possession, without color of title, in seven years. We think that the plain deduction from all that is ruled in the foregoing decisions is that § 85-1602 and other sections of the Code, comprising the processioning law of this State, authorize proceedings thereunder to mark land lines of rural land, but not of lands located inside the corporate limits of cities or towns; and in suits to recover land, whether rural or city, where title is otherwise shown, acquiescence by acts or declarations for seven years in a dividing line by adjacent owners establishes such line as the true line, and that § 85-1602 is applicable in such cases. In Ivey v. Cowart, 124 Ga. 159, 162 ( 52 S.E. 436, 110 Am. St. R. 160), a suit to recover land, it was said: "If the location of the line was uncertain, and the parties to the controversy, or their predecessors in title, while holding it, had acquiesced by acts or declarations for seven years or more in a dividing line between their lots, this would establish it as to them." The opinion cites in support of this rule the Code, § 3247 (now § 85-1602); Riley v. Griffin, 16 Ga. 142 (19) (60 Am. D. 726); Watt v. Ganahl, 34 Ga. 290; Glover v. Wright, 82 Ga. 114 ( 8 S.E. 452); Catoosa Springs Co. v. Webb, supra. In both Cassels v. Mays, 147 Ga. 224 ( 93 S.E. 199), and O'Neal v. Ward, 148 Ga. 62 ( 95 S.E. 709), the rulings were, not that it was error to charge § 85-1602, but that when a part of this section was charged it was error to omit therefrom the words, "by acts or declarations of adjoining land owners." The acquiescence rule in the Code section will in no case create or establish title; but where a proved title, by a fair construction, will embrace the lands up to the line established by acquiescence, then under this section title comes from the source proved, and the acquiescence fixes the dividing line. The petitioners' deed described the southern boundary of their land as being the lands owned by the defendant. This language in the deed clearly conveyed title to the grantees to all of the land up to the line of the defendant's land. When this line was established, whether by formal agreement of the parties or by acquiescence, as the evidence in the present case authorized the jury to find, the parties thereby fixed the north boundary line of Mrs. Veal's land, which under the terms of the deed was the southern boundary line of the church land. The Code, § 85-1602, was applicable, and it was not error to give it in charge.
It is insisted by counsel for the movant, however, that as to the strip of land on the east side of the church property, acquired by deed in 1934, and described as measuring 5 feet from east to west, and 150 feet from north to south, the petitioners have no semblance of paper title to an extension of this land south to the dividing line as found by the jury. This is deduced from the fact that by that deed the petitioners acquired a strip of land extending from the street on the north a distance of exactly 150 feet, and the fact that under the evidence the distance from the edge of the pavement on the north to the dividing line as found by the jury is more than 150 feet. The fatal weakness of the movant's argument lies in the fact that there is no evidence in the record to show that the edge of the paved sidewalk on the north is the line between the street and the petitioners' property. On the contrary, there is evidence that the paved sidewalk is not on the property line, and does not run regularly, and exactly east and west. In view of the evidence in the case, the jury might have found that the property line on the north was exactly 150 feet from the dividing line which they found. Being so authorized to find from the evidence, and such a finding being essential to support the verdict as it relates to this particular strip, it must be held that the jury did so find.
On application of the principles of the Code, § 85-1602, the evidence supports the verdict. See Code, § 38-308; Anderson v. Black, 191 Ga. 627 ( 13 S.E.2d 650); Lockwood v. Daniel, 193 Ga. 122 ( 17 S.E.2d 542). These rulings control, adversely to the movant, both the general grounds and special ground 1, which is an amplification of the general grounds, as well as special ground 2, which complains of that portion of the charge embracing § 85-1602.
2. Special ground 3 excepts to the portion of the charge embracing the provisions of the Code, § 85-1601. The grounds of complaint are that the instruction was inapplicable to the facts, and was calculated to confuse the jury, and thereby helped to cause their verdict, returned against the movant. There is no evidence in the record which would make the charge complained of applicable. However, inapplicability alone does not constitute reversible error. Injury to the complainant must be shown, and it is insufficient in the special ground of the motion for new trial, complaining on the ground that the charge was confusing, to state merely a conclusion of the pleader to that effect without showing in what manner such charge was confusing to the jury. This ground is lacking in these essential respects, and therefore is without merit. Riddle v. Sheppard, 119 Ga. 930 (3) ( 47 S.E. 201); Dolvin v. American Harrow Co., 131 Ga. 300 (10) ( 62 S.E. 198); Long v. Gilbert, 133 Ga. 691 (5) ( 66 S.E. 894); Blackwell v. Houston County, 168 Ga. 248 (2) ( 147 S.E. 574); Floyd v. Boss, 174 Ga. 544 (5) ( 163 S.E. 606); Davenport v. Waters, 40 Ga. App. 99 ( 148 S.E. 772).
3. Special ground 4 complains of the following colloquy between the court and the foreman of the jury. After retiring from the court-room the jury returned and the foreman said: "What we want to know is, can we establish a line with this blueprint as a land line between Mrs. Taylor and Mrs. Veal, running due west for the church line and Mrs. Veal's line?" The court replied in substance by instructing the jury that they might find in favor of the plaintiff or in favor of the defendant as prayed in their respective pleadings, or if they found the evidence justified it or called for it, they might find for the plaintiff in part and for the defendant in part. Thereupon the foreman asked: "May we split the difference between them?" The court replied: "You go according to the evidence is all I can tell you." This ground excepts to the judge's response to the inquiries of the foreman, and contends that the judge should have given a direct and unequivocal answer to the questions of law propounded by the foreman, and should have then and there instructed the jury in effect that, if they believed the verdicts indicated by the questions would speak the truth under the evidence and under the law previously given in charge, they would be authorized to find the dividing line to be as indicated by the blueprint or they would be authorized to split the difference between the claims of the parties. It is readily apparent that each of the questions asked by the foreman involved questions of fact, and answers thereto depended upon the evidence in the case. Hence, for the court to have answered unqualifiedly that the jury might find the dividing line as indicated by either of the questions would have constituted a clear intimation as to what the evidence in the case was, and would have been a violation of the Code, § 81-1104. The responses were fair, and went as far as the court could safely have gone in instructing the jury as to their verdict. There is no merit in this ground.
4. In the 5th, and remaining special ground, the exception is to the overruling of the movant's motion to exclude the following testimony by the petitioners' witness Harris: Question: "What line was that picket fence on?" Answer: "The south line of the church." The motion to exclude this answer of the witness was based upon the stated ground that it was an opinion, a mere conclusion, and that the true dividing line should be shown by facts and not by an opinion of any witness. This question and answer are taken from a long series of questions propounded to this witness and his answers, and standing alone this answer does not fairly reflect the condition of the evidence and of his testimony at the time it was made. This witness had theretofore and immediately preceding such answer testified that in 1916 the defendant pointed out the fence referred to in the answer and told the witness it was the dividing line between her property and the property of the church. She thus informed the witness, according to his testimony, that this fence was the south line of the church's property. If the facts upon which the answer of the witness was based were necessary, then his previous testimony as to what the defendant had told him constituted ample facts to support his statement that the fence was the south line of the church's property. The answer complained of, however, was not necessarily an opinion or a conclusion of the witness. It was a statement of fact, and so far as appears in this ground, the witness was sufficiently informed to enable him to testify from his own knowledge as to such fact. The court did not err in overruling the motion to exclude this testimony.
Judgment affirmed. All the Justices concur.