Hansen v. Owens , 1912 Ga. LEXIS 129 ( 1912 )

Beck, J.

John S. Owens and Edgar Latham brought against F. J. Hansen an action for the recovery of land. On the trial of the suit the plaintiffs relied both upon written title and upon prescriptive title, contending, in support of their claim of prescription, that the grantor in their deed of conveyance and those under whom their grantor held possession had been in open, notorious, and continuous possession for the statutory period. The jury returned a verdict for the plaintiffs. The defendant máde a motion for a new trial, which was overruled.

. The charge quoted in the headnote was excepted to upon the ground, among others, that it was “erroneous in that it permitted the jury to connect two distinct acts of possession separated, by a period of several years, merely because of possible absence of intention to abandon the possession, and thus allowed the jury to find in favor of plaintiffs’ alleged prescriptive title without actual possession of seven years, but merely because of the absence of the intention to abandon the land during that time.” The exception-points out error in the charge which requires a reversal of the judgment denying a new trial. Under this charge the jury would have been authorized to find that they might tack two separate periods of possession which in the aggregate would be equal to the period of time necessary for the ripening of the prescriptive title, although the alleged predecessors in title of the plaintiffs, and upon whose possession the latter base their claim of prescription were not actually in possession of the land in the interval between the two periods of possession, if, during that interval, they did any act which negatived the intention to abandon the property. Clearly this was error. Suppose the alleged predecessors in title of plaintiffs during the interval of time ¿lapsing between the two periods of possession, although not in possession of the land by themselves or by a tenant holding under them, had returned the land for taxes and had frequently asserted that they claimed title to the land. 'The paying of the taxes and the constant assertion by word of their title would be evidence that they had not abandoned the property, and would show an intention upon their part of returning to possession of the land. But clearly such acts and sayings would not be the equivalent of open, notorious, and adverse possession of the land, all of which are essential elements of prescriptive title.

Other portions of the charge contain the infirmity which we have pointed out in the excerpt from the charge quoted above. Save in this respect, the exceptions to the charge and the rulings of the court present no valid grounds for reversal of the judgment denying a new trial.

Judgment reversed.

All the Justices concur, except Hill, J., not presiding.