Benton v. Horsley , 71 Ga. 619 ( 1883 )

Hall, Justice.

This was an action' in the statutory form to recover thirty acres of land, more or less, situated on Murder Creek, in Jasper county, and was a part of a much larger tract that was owned by Lewis F. Pou, who, on the 15th day of January, 1879, conveyed the premises in dispute to Lucien B. Newton and William G. Horsley. Newton subsequently conveyed to Horsley, the plaintiff in this suit. The boundaries of the land are set forth, in the deed from Pou to Newton and Horsley as follows :

“Thirty acres of land, more or less, off of what is known as the mill tract, including the mill-seat, beginning at an old white-oak stump at the Holland Bridge, on the road running from the old mill-seat to William H. Preston’s, and running along William H. Preston’s line to high-water mark on the west bank, thence up said creek on the west bank, at high-water mark, to John Davidson’s line, then with Davidson’s line across said creek to high-water mark on the east bank, thence down the east bank at high-water mark of said creek to a rock corner to be put ,up about one hundred yards, more or less, above the old bridge. ’ ’

The deed containing this description was set out as a portion of the plaintiff’s abstract of title. The defendant pleaded the general issue, and thereby admitted possession of the premises sued for. On these pleadings a trial was had, resulting in a verdict in favor of the plaintiff for the premises in question. A motion was made for a new trial, which was refused, and upon this refusal the defendant assigned error, and brought the case here by bill of exceptions and writ of error.

The motion was made for a new trial upon these grounds:

(1.) ;Because the verdict is contrary to law and evidence and without evidence to support it.

(2.) That it is decidedly and strongly against the weight of evidence.

(3.) That the court erred in charging the jury that they should- “ find the line on the west side of the creek along with the fence of W. H. Preston up to the line of Davidson, at high water mark, and thence down said creek at high-water mark, if from the evidence they could .ascertain where it was, but if they could not find the high-water mark, then they would be authorized to find for the plaintiff to the east bank of the creek,”—Defendant objecting to so much of this charge as related to the line of Wm. H. Preston’s fence as being on the high-water mark or on a line with it.

(4.) That the court erred in charging, “When land is conveyed by metes and bounds, whether there be more or less than the quantity named in the deed, the purchaser obtained title to the whole of it.”,—It is claimed that this is error, because the jury mistook the meaning of the court; the evidence showing that the whole of the mill tract was thirty acres, over half of which was not in dispute, the effect of the charge was to withdraw from the consideration of the jury the quantity of land embraced in the entire tract, in ascertaining what land was really conveyed by plaintiff's deed.

(5.) The verdict is erroneous in that it finds for the plaintiff land which never belonged to either of the parties litigant, viz,, the land of Wm. H. Preston, no deed being introduced nor any other evidence fixing high-water mark at an along Wm. IT. Preston’s fence.

1. It is insisted in argument that there is a variance between the description of boundaries set forth in the declaration and that contained in the deed appended as a portion of the abstract of plaintiff’s title. We do not find that this variance exists. The boundaries are more fully described in the declaration than in the deed' from Pou to Newton and plaintiff. There are certain particulars in the former which are not found in the latter, which were doubtless averred to let in testimony applying the description to the subject-matter in controversy. But be this as it may, no exception was taken at the trial on account of the alleged variance, and no such question was submitted or passed upon by the court.

2. The third and fifth grounds of the motion for a new trial relate to the same subject, and will be considered together. The objection to the charge and verdict amounts to this, that there was error in making the fence of William H. Preston the high-water mark on that side of the creek, and that the jury, in following this instruction, found for the plaintiff a portion of the land of William TL Preston, to which neither of the parties litigant laid claim. We do not agree with either of these conclusions;- the court did not charge the jury that William H. Preston’s fence was at the line of the plaintiff, on the high-water mark; they were referred to the evidence to locate this line, and were instructed to follow it, if they could find from that source where it was. There was evidence as to the relative situation of this fence to the line of the high-water mark on that side of the creek. “Along” a line does not signify that an object must be on the line, but rather the reverse; along, in this sense, is used as the equivalent of up to, extending to, reaching to, and in this sense it is entirely consistent with the description contained in the deed from Pou to plaintiff and Newton.

The defendant admitted possession of the entire tract of land sued for. He did not by his pleading show, as he might have done, what portion of it he claimed, and what he did not claim. He put in no disclaimer as to any of it; he insisted on his right to the whole. There was, by the pleadings, no special issue made as to the proper boundaries. This issue might have been presented either by a special plea or by a bill in equity in aid of the defence, but neither was done. The sole question for the jury to determine was which party had a right to the land in question, as they both claimed under a common grantor. Evidence was had as to what constituted high-water mark, in the understanding of the parties when the deed was made from Pou to Newton and plaintiff, which was older than defendant’s deed, and which latter deed called for plaintiff’s line as his boundary on that side of the creek. The land was sold to plaintiff for a mill-seat; it was probably intended that he should have all of it that might be covered by the pond made by damming up the stream to render it available for the purpose in view. This line being apparently in the contemplation of the parties, evidence was properly admitted, at least without objection from the defendant, to show the extent óf the grant, in this phase of the case. There was evidence on which the jury could act, and which would authorize them to extend the line beyond the banks m which the stream, unobstructed by the dam, ordinarily ran.

If the defendant demanded more certain evidence, it was in his power to have procured it, either by a survey under the order ol the court, and upon notice to his adversary (Rules of Court, 55 to 59, both inclusive; Code. p. 1353 Ibid., §578), or he might have had processioners appointed and the boundaries fixed by them. Code, §§2384, 3493.

It has been suggested that there will be difficulty in executing the writ of habere facias jpossessionemixv this case. When this occurs, it will doubtless be properly disposed of by the court to which the writ is returnable.' We cannot raise the question and give directions in advance. We have no jurisdiction or authority to interfere and give directions how to deal with a mere apprehended trouble.

3. The charge excepted tc in. the fourth ground of the motion was pertinent, and stated the principle of law embodied in it correctly. No exception is taken to it on this account; but it is insisted that the jury mistook the meaning of the court as to the quantity of land contained m the boundaries specified in the deed under which plaintiff claimed, and that they did not consider this fact in ascertaining the boundaries. It is not apparent to us that such was the case; it is very certain that no intimation was given by the court to that effect. The entire charge is not contained in the record, and we must presume that it was correct, and covered the point in question.

4. While the verdict was not, perhaps, required by the evidence, we are of opinion that it is supported by it, and the presiding judge being satisfied that it was proper, we cannot, under well settled rules, interfere to set it aside. He has the discretion to act m the case, and so far from abusing, he • appears to have exercised it soundly and legally.

Judgment affirmed.