Alabama Great Southern Railroad v. Bass , 29 Ga. App. 463 ( 1923 )

Stephens, J.

1. This being a suit for damages against a railroad company, arising out of an alleged trespass by the defendant upon the plaintiff’s lands, caused by the defendant widening one of its cuts and thereby extending into the plaintiff’s land, and also by dumping excavated dirt upon the plaintiff’s land, and the defendant disputing the plaintiff’s title to such of said land as was not inclosed by a fence, and therefore not, as claimed by the defendant, in the actual possession of the plaintiff, but there being evidence to support the plaintiff’s title to the land, even assuming that his possession thereof -was constructive merely and not actual, a finding 'by the jury adverse to the defendant’s contention in this respect was authorized, and, there further being evidence to support the amount found by the jury as representing the damage thus caused to the plaintiff, the verdict rendered was not without evidence to support it.

2. The exception to the charge of the court that the plaintiff could recover damages by trespass to land, the title to which he held by prescription based upon constructive possession, was without merit. Such charge was authorized by the evidence and was in no wise prejudicial to the defendant. Judgment affirmed.

Decided February 8, 1923.

Trespass; from Dade superior court — Judge Tarver. March 31, 1922.

McClure, Hale & McClure, Maddox, McCamy & Shumate, for plaintiff in error. J. E. Rosser, B. T. Brock, contra. Jenkins, P. J., and Bell, J., concur.