Opinion
17346.
FEBRUARY 14, 1951.
REHEARING DENIED MARCH 14, 1951.
Petition for injunction. Before Judge Nichols. Walker Superior Court. October 20, 1950.
Freeman C. McClure, Gleason Painter, and A. W. Cain Jr., for plaintiff.
G. W. Langford and Maddox Maddox, for defendants.
1. Agency was not established by the evidence in this case.
2. Acquiescence in a dividing line between the parties for a period of seven years or more will establish a dividing line.
No. 17346. FEBRUARY 14, 1951. REHEARING DENIED MARCH 14, 1951.
Mrs. Effie Watts brought suit against W. M. Pettigrew, Berry Pettigrew, Luke Pettigrew, and Jess Pettigrew, seeking to enjoin the defendants from trespassing upon and cutting timber from lands alleged to belong to her, and to recover damages for timber alleged to have already been cut and carried away. She alleged in substance: that she and the defendant W. M. Pettigrew were coterminous landowners; that the other defendants were the sons of W. M. Pettigrew; that the defendants had been cutting timber and destroying fences on land belonging to her; that the line between the lands of the plaintiff and the lands of the defendant is an old fence erected more than 30 years ago, which has been acquiesced in and respected by both parties at all times by the carrying on of a general farming operation and by the cutting of timber up to the fence on either side; that recently the defendants have committed acts of trespass and continue to commit continuous acts of trespass upon the said lands of the plaintiff. The prayers of the petition were for injunction and for damages.
The answer denied all material allegations of the petition, and set out as an affirmative defense that Mrs. Watts' husband, C. Watts, acting as the agent of Mrs. Watts, agreed with W. M. Pettigrew in 1945 that the line should be run, and that such line would be the dividing line between the lands of the parties; that, at that time and as a part of the agreement, Mr. Pettigrew agreed to release his rights in a well located on the lands of Mrs. Watts; that he did have the line run by a surveyor, and did release his rights in said well to Mrs. Watts in writing; but that the plaintiff denied that the line as run was correct, and would not permit a surveyor to come upon her lands to run it again; that, since that time, Mrs. Watts has put a fence around the said well; that he always understood that the line was to be run by a surveyor.
The evidence at the trial was voluminous. It is not necessary to set it out in detail here. It is only necessary to say that, as to most particulars, the evidence was in conflict. The plaintiff in error objected to the introduction of certain testimony by defendant W. M. Pettigrew as to conversations with one Mr. Wilson, a predecessor in title to Mrs. Watts, and since deceased, tending to show that the alleged line arose permissively, on the ground that a party may not testify in his own favor as to conversations and transactions with an assignee, endorsee, or transferee of a deceased person. This objection was overruled, and the evidence admitted.
Plaintiff also objected to the testimony of various of the defendants as to conversations with Mrs. Watts' husband and two of her sons to the effect that there had been a subsequent agreement regarding the line, on the ground that neither Mr. Watts nor the sons of Mrs. Watts were parties to the suit, and as to Mrs. Watts, the testimony was hearsay and self-serving. This objection was overruled, and the evidence was admitted.
After all the evidence was in, defendant made a motion for a directed verdict, and, as shown by the record, incorporated in his motion as the reasons why a verdict should be directed, that the evidence showed conclusively that the fence alleged to be the line was erected permissively, and that the evidence showed conclusively that Mr. Watts, as agent for Mrs. Watts, had agreed that the line should be run, and that the line so run should be the dividing line between the lands of the parties, and that at a later time, Mrs. Watts' sons, as agent for Mrs. Watts, agreed with Mr. Pettigrew's son, as agent for Mr. Pettigrew, that they would get a surveyor and measure off fifty-five acres for Mrs. Watts, and wherever the line might fall, it would be accepted by both parties as the dividing line. The motion for directed verdict was sustained, and a verdict directed in favor of the defendant. Plaintiff made a motion for new trial, and assigns as error the admission of the testimony above referred to, the directing of a verdict for the defendant, and the judgment denying a new trial.
1. In the view we take of this case, it is not necessary to pass upon the first ground of the amended motion for new trial.
2. Grounds two through ten of such amended motion complain of the admission, over objection, of testimony by various of the defendants as to conversations and transactions with Mrs. Watts' husband, and at a later time, as to conversations and transactions with Mrs. Watts' sons concerning agreements settling the dividing line between the lands of the parties; the objection being that neither Mr. Watts nor the sons of Mrs. Watts were parties to the suit, and that, as to Mrs. Watts, this testimony was hearsay and self-serving. The defendants contend that this testimony was admissible because Mr. Watts and the sons were acting as the agents of Mrs. Watts in settling the dispute regarding the dividing line.
We will not attempt to set out all of the evidence in the record. It is sufficient to say that a careful and thorough examination of the record fails to disclose any evidence which would authorize the conclusion that either Mr. Watts or the sons were acting as the agent of Mrs. Watts in this matter, and counsel for the defendant has pointed out none. The only evidence tending to prove any agency is statements by Mrs. Watts to the effect that Mr. Watts carried on the farming operation and managed the farm until he became sick, and that afterwards the boys did the same. This is insufficient to prove the alleged agency. See Wagner v. Robinson, 56 Ga. 47, Jones v. Harrell, 110 Ga. 373 (3) ( 35 S.E. 690), and Young v. Wilson, 183 Ga. 59 ( 187 S.E. 44). The evidence was therefore hearsay, self-serving, and inadmissible, and it was error for the court below to admit it.
"General reputation in the neighborhood shall be evidence as to ancient landmarks of more than 30 years' standing; and acquiescence for seven years, by acts or declarations of adjoining landowners, shall establish a dividing line." Code, § 85-1602. On a trial, when a dividing line is an issue and it is claimed that such dividing line is established by acquiescence for a period of more than seven years, the question is whether or not there has been acquiescence by both parties in a dividing line for the required period of time. See Tietjen v. Dobson, 170 Ga. 123 ( 152 S.E. 222); Brown v. Hester, 169 Ga. 410 ( 150 S.E. 556); Brogdon v. Cooper, 41 Ga. App. 88 ( 151 S.E. 834). It is not necessary that the acquiescence be manifested by any conventional agreement. Sapp v. Odom, 165 Ga. 437 (7) ( 141 S.E. 201). The doctrine of prescription is not involved ( Brown v. Hester, supra), and whether or not the dividing line arose permissively is likewise not involved.
In view of the rulings above made and the evidence in the record regarding the question of acquiescence by the parties to the instant case in a dividing line for a period of more than seven years, it is not necessary for this court to go further than to say that there were issues of fact which should have been submitted to the jury, and it was error for the court below to direct a verdict for the defendant.
4. The defendant in error contends that the amended motion for new trial does not recite that the plaintiff in error excepted to the rulings of the court below on the objections therein set out, and for that reason, there is nothing before this court to be passed upon. There is no merit in this contention. It follows, from what has been said above, the judgment of the court below must be reversed.
Judgment reversed. All the Justices concur.