Clark v. White , 120 Ga. 957 ( 1904 )

Lamar, J.

(After stating the foregoing facts.) It is unnecessary to determine whether the deeds executed out of the State had been properly attested, or whether they were duly recorded. For if the color had been admitted, there was not such evidence of continuous possession as to ripen the same into a good prescriptive title. The plaintiff’s own possession was only for five years. ■ He moved away in 1883, toré down the house, allowed the fences to rot, and the enclosure to grow up in undergrowth. It was years afterwards before another entry; and the- previous possession having been broken, and its continuity destroyed, no advantage thereof can be taken by tacking or adding it to the subsequent possession through Curtis. At any time during the interval the true owner could have entered. During this period of abandonment the true owner was in constructive possession. If the statute did not run against him, it could not run in favor of the plaintiff. Of course, one is not obliged to remain actually on the land during the entire prescriptive period. It is necessary,' however, that during the whole time there shall be something to give notice that another is doing such acts or holding out such signs as to indicate the existence of a possession adverse to the true owner. As said by Chief Justice Gibson, in Stephens v. Leach, 19 Pa. St. 262, “ A man does not discontinue his possession by locking up his house in town, or suspending his cultivation in the country, provided he do not suffer the building in the one case, or the fields in the other, to be thrown open; but he is bound to continue a positive appearance of ownership, by treating the property as his own, and holding it within his exclusive control. An intention to resume a suspended intrusion, of which the owner of the title may know nothing, is short of the requirement of the statute. The question is not, what did the outgoing occupant intend, but, what did he do ? Did he keep his flag flying, and present a hostile front to adverse pretentions ? An adverse possession ought to be such as to challenge the right of all the world; but when an occupant evacuates the place and suffers it to go to wreck, he hauls down his colors, and his challenge is withdrawn.” The same rule is recognized in Denham v. Holeman, 26 Ga. 183, where the court said “adverse possession is to be made out by acts which are open, visible, notorious, and continuous ; and does not depend upon the secret purpose or intention of the intruder that he will return at his convenience, sooner or later, and reoccupy the land.” “ To constitute adverse possession the tenant must either remain permanently upon the land, or else occupy it in such a way as to leave no doubt on the mind of the true owner, not only as to who the adverse claimant is, but that it was his purpose to keep him out of the land.” See also Virgin v. Land, 32 Ga. 572 ; Joiner v. Borders, 32 Ga. 239; Byrne v. Lowry, 19 Ga. 27; Morrison v. Hays, 19 Ga. 294; Holcomb v. Austell, 19 Ga. 604; Thursby v. Myers, 57 Ga. 156 (6); Jenkins v. Means, 59 Ga. 55 (3).

Here the suit was filed September, 1900. The witnesses testified in October, 1903. One of these said that Curtis entered “ six or seven years ago; ” another that he entered “ between seven and nine years ago. ” Giving this the most favorable construction for the plaintiff, it would appear that Curtis had entered, at the farthest, not more than six years before the suit was filed. This was wholly insufficient to make out a prescription under that entry, even if the storing of tools by Frohawk could be treated as that open and notorious possession required by the statute. It did not continue for seven years, nor could this period be tacked to the five years possession of Clark, which terminated in 1883. While the occupants may be many, there must be one unbroken and continuous possession for the statutory period. A may surrender his inchoate title to B, and if B enters and maintains the possession unbroken, the two periods may be so tacked as to create a prescription in favor of B. But disjointed, interrupted, and discontinuous periods of possession, of one or many, can not be tacked so as to ripen into good title by prescription.

Judgment affirmed.

All the Justices concur.