Watts v. Griswold , 20 Ga. 732 ( 1856 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] There is but a single question in this case: did the facts proven constitute adverse possession of the lot of land in dispute, so as to ripen into a statutory title in behalf of .Samuel Griswold, the plaintiff?

The testimony is .brief: Griswold owned a saw-mill near this uninclosed pine lot; for four or five years he cut stocks for his mill and hauled them from the premises, and made roads and causeways for that purpose; and for several years more, cut lightwood and firewood for the rail road off the .land. It is conceded, for the purposes of this decision, that •this kind of user continued for seven years. Was this such an open, notorious and visible occupation of this property, under all the circumstances of the case, as to manifest an intention on the part of Griswold to claim the fee ? We think not. And no case, we apprehend, can be found to warrant such a conclusion. If such were the law, the title of almost every proprietor of uninclosod'real estate in the neighborhood of all of our cities, towns and villages, would be jeopardized. For who has been fortunate enough to escape intrusions and trespasses — similar in character at least, if not to the same extent ? We can hardly conceive of a case where such acts as these would perfect a statutory title. The fallen logs removed for lightwood and firewood, and which constitute no part of the realty, would scarcely be missed or observed by the owner, unless very familiar with his grounds-; and the timber cut and carried away for lumber would only indicate by the stumps and tops which were left, that some wrong-doer or wrong-doers were making pretty free use of •that which did not belong to them; but this would fall far short of conveying to the tenant in fee, notice that his right to his domain was seriously controverted. Unlike the building a house, the cultivation of a field, the digging a mine, or -even the belting of a pine, forest for turpentine, the acts of -trespass, established by the evidence, are too roving and discursive to suggest the idea of a continuous possession. It does not appear but that this lot of land, or some portion, might not have been used for tillage or other purposes.

But we forbear to proceed further upon this beaten path. That Griswold bona fide claimed this land under color of ' title, is not disputed. He bought it, took a deed for it which was duly recorded, paid taxes on it and appointed an agent to overlook it. But notwithstanding all this, we are clear that his occupancy was not of such a character as to bar the right of entry of the grantee or true owner, and the Circuit •Judge should have instructed the Jury accordingly.