White v. Rainwater , 205 Ga. 219 ( 1949 )

In the present suit by a landowner, seeking to enjoin a coterminous proprietor from committing alleged acts of trespass, the evidence demanded a finding in favor of the petitioner and, accordingly, the trial court erred in rendering a judgment finding the location of the boundary line as claimed by the defendant, and in denying an injunction as sought by the petitioner.

No. 16590. APRIL 13, 1949. D. E. White filed in Tift Superior Court, against C. H. Rainwater, a petition seeking to enjoin the defendant from committing alleged acts of trespass. The petitioner alleged that he and the defendant were coterminous landowners, and that he had undertaken to mark the original north boundary line of his lands by erecting stobs, but that the defendant had removed the same and would continue to so do unless enjoined by a court of equity. The defendant filed an answer admitting that he owned the land immediately north of the petitioner, but denying that the boundary line was as contended by the petitioner.

By agreement of the parties the case was heard by the trial court without the intervention of a jury. The uncontradicted evidence showed: The east half of block 61 in the City of Tifton is bounded by 12th Street on the north, Hall Avenue on the east, 10th Street on the south, and an alley on the west. The above half block consists of lots 1 to 6, extending from south to north in that order from 10th Street to 12th Street. Each lot fronts 100 feet on Hall Avenue on the east, and extends an even width 200 feet in a westerly direction to the alley. The petitioner and the defendant hold under a common grantor. In March, 1944, the common grantor conveyed to the defendant title to the north half of lot 2 and to a 25-foot strip across the south half of lot 3, thus giving him 75 feet fronting on Hall Avenue on the east and running back an even width 200 feet to the alley. In July, 1946, the common grantor conveyed to the petitioner title to lot 1, bounded by 10th Street on the south, and to a 50-foot strip across the south half of lot 2, thus giving him a 150-foot frontage on Hall Avenue on the east and running back an even width 200 feet to the alley. The disputed area is a strip of land approximately 11 feet wide that extends 200 feet from east to west through the center of lot 2.

There was evidence for the petitioner which showed substantially the following: After purchasing his land he procured a person to make a survey of the properties. The surveyor located the south side of 12th Street and the north side of 10th Street. The distance between the two streets was 600 feet. There were some iron stakes in Hall Avenue east of the property line, but there was no stake to mark the corner of the disputed area as contended by the defendant. According to the survey, Dr. Fleming, the landowner to the north of the defendant, has a 11-foot strip of defendant's land; and if that strip was given to the defendant, there would be only three-tenths of a foot difference between him and the petitioner.

The common grantor testified for the defendant: After the dispute arose between the petitioner and the defendant, he pointed out to the latter the line to which he sold him. There were some stakes that had been there for some time. He identified the stakes and indicated them as the line. He had measured from the south boundary of Dr. Fleming's place to the stakes at the south boundary of the defendant's land, which was 75 feet. He assumed that the hedge was on the correct southern boundary of Dr. Fleming's land, but he did not undertake to survey and locate the original lot lines so as to determine whether or not the hedge was on the correct line.

The defendant testified: When the land was surveyed, he helped them throw down the tape line on a stake on Dr. Fleming's south line, and the defendant's north line, on the southeast corner, and it measured to the inch 75 feet. The property that he is in possession of and to the line he claims measures 75 feet in width on the east and west sides. The common grantor put the defendant in possession of the property on May 13, 1944. After he moved there and was in possession, the common grantor pointed out the stakes. From June, 1944, to date, he had been cultivating down to the iron stake on the southwest corner next to the alley. There was no contention between him and the common grantor during the time the latter owned the property to the south before conveying it to the petitioner. He assumed that the hedge was on the correct south boundary line of Dr. Fleming's property, but did not undertake to survey and locate the original lot line between the lots so as to determine whether or not Dr. Fleming's hedge was on the line.

Howard Rainwater, the son of the defendant, testified: He negotiated for his father with the common grantor for the purchase of the property. At the time he bought it, he went out and looked at it. They agreed upon a line. The line was pointed out to him on the north that the common grantor was selling to his father. A stake was on the north, that is on Dr. Fleming's property. On the southeast of Dr. Fleming's lot, there was a hedge, and the stake was right near it. On the southeast corner of the lot purchased for his father there was an iron stake. On the southwest corner of the Fleming lot there was a wooden stake. He said that that was the north side of the lot. On the south side there was a metal stake, and he said that was the south and it goes from one corner to the other, that was on the east side. On the southwest corner there was a garden that ran up to the line the defendant claims. He did not make an accurate measurement of the width of the lot line. The distance from the Fleming line to the southern boundary of the defendant is 75 feet on the east and west. They measured on the west side, using the stake on the southwest corner of the Fleming land and the approximate line on the north corner. From the northwest corner to the southwest corner it measured 75 feet. When the witness was talking to the common grantor he told him that he was buying the land for the defendant. The common grantor pointed out the south boundary line of the defendant's tract as what he was selling, and after he deeded that the common grantor owned from there to 10th Street. They did not examine the stake at the northwest corner. The only stake that the witness saw was the stake next to Dr. Fleming's lot and the stake on the southwest corner. They did not measure from the end of the line where they assumed that the Fleming hedge was on the correct dividing line, or undertake to ascertain the original lot line to see if it corresponded with the stakes. The witness purchased the 75 feet below the Fleming hedge, and that was what the common grantor put him in possession of, and the defendant has been in possession of it ever since. The iron stake was not pointed out as the southwest corner of the lot. It was the southeast corner. It was not a line but a corner, and the same thing is true with reference to the wooden stake.

Dr. Carlton A. Fleming testified: He owned the residence which is on part of lot number 3. His deed calls for 75 feet, north and south. There is a growth of reeds on the south line of his lot between him and the defendant in the back, and in front there is a little hedge. The witness never paid much attention to it, and has never seen a stake on the southeast corner. There was never any dispute between him and the defendant or the defendant's grantor. The witness owns down to the defendant's line, but does not know anything about the boundaries of the defendant's tract.

The trial court, without the intervention of a jury, held that under the evidence submitted and the law applicable thereto the line as claimed by the defendant was the true established line between the property of the petitioner and the property of the defendant, rendered a judgment in favor of the defendant, and denied the petitioner's prayer for an injunction. In a direct bill of exceptions, the petitioner assigned error on this judgment. Whether or not certain testimony objected to was, as contended by the petitioner, an attempt to vary the terms of the deeds, is immaterial, since it did not in fact authorize any finding that the petitioner's boundaries were otherwise than as stated in his deed. This is true for the reason that, with reference to Dr. Fleming's hedge from which the defendant's witnesses testified that they measured 75 feet south to what the defendant contends is his southern boundary, there is no testimony that the hedge did in fact coincide with such southern boundary of Dr. Fleming; and, of course, if the hedge was not on the correct boundary line, it would not furnish a starting point from which the defendant could measure off the 75 feet that he was entitled to under his deed.

The defendant did not offer any evidence to contradict the positive testimony of the surveyor that the disputed area was not covered by the defendant's deed, but, on the contrary, was included in the petitioner's deed. However, the defendant insists that the evidence shows that the disputed line was established by a subsequent agreement between him and the common grantor.

An unascertained or disputed boundary line between coterminous proprietors may be established by oral agreement, if the agreement be accompanied by actual possession to the agreed line, or is otherwise duly executed. Williams v. Prather, 188 Ga. 545 (1) (4 S.E.2d 140); Bradley v. Shelton, 189 Ga. 696 (4a) (7 S.E.2d 261); Lockwood v. Daniel, 193 Ga. 122 (1) (17 S.E.2d 542); McGill v. Dowman, 195 Ga. 357, 365 (2) (24 S.E.2d 195); Palmer v. Hinson, 201 Ga. 654 (1) (40 S.E.2d 526); Allen v. Smith, 202 Ga. 363 (43 S.E.2d 150).

In the present case, the dispute arose between the petitioner and the defendant after the common grantor had disposed of the entire tract, and had therefore ceased to be a coterminous landowner.

The common grantor testified as a witness for the defendant that he pointed out the dividing line after the dispute arose. While the defendant testified that after purchasing the land and being placed in possession the common grantor pointed out the dividing line, still, he did not testify that this line was pointed out during the two-year period in which the common grantor retained title to the adjoining land, subsequently conveyed to the petitioner.

"The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him, when it is self-contradictory, vague, or equivocal." Hill v.Agnew, 202 Ga. 759 (2) (44 S.E.2d 653); Shepard v.Chappell, 29 Ga. App. 6 (2) (113 S.E. 23). Applying this rule, it appears from the testimony of the defendant's own witness that the line was pointed out after the dispute arose and at a time when the common grantor had ceased to be a coterminous landowner. In these circumstances, the testimony of the defendant that the line was pointed out after he went into possession, without stating that the incident took place while the common grantor retained title to the adjoining tract of land, was vague and equivocal. Construing the defendant's testimony with that of his own witness, the evidence was insufficient to show the establishment of an unascertained dividing line at a time when the common grantor was a coterminous landowner.

The defendant's son, who purchased the land for his father, testified that the dividing line was pointed out to him during negotiations for such purchase.

"Where parties reduce their agreement to writing, all oral negotiations antecedent thereto are merged in the writing, and even though the writing does not express the contract actually made, the parties must stand by it until it is reformed in a proper way by a competent tribunal." Weaver v. Stoner,114 Ga. 165, 167 (39 S.E. 874); Hall v. Davis, 122 Ga. 252 (2) (50 S.E. 106). Assuming without deciding that the son was authorized to bind the defendant by any parol agreement that might have been entered into during negotiations for the purchase of the land, under the facts of the present case both the defendant and the common grantor were bound by the terms of the deed, which distinctly fixed the lines of the land intended to be sold; and even if it was the intention of the common grantor and the defendant's son that one of the lines should be at a different place, until the deed is corrected and reformed the parties must stand by it as it is.

It follows that the evidence demanded a finding in favor of the petitioner, and the trial court erred in rendering a judgment finding the location of the boundary line as claimed by the defendant, and in denying an injunction as sought by the petitioner.

In this view, it is unnecessary to decide whether merely pointing out what is supposed by all concerned to be an established line is sufficient to constitute the establishment by parol of an "unascertained" boundary line between coterminous proprietors. See, in this connection, Commissioner of Internal Revenue v. Owens, 78 F.2d 768, where it is said that the word "unascertained" is defined as meaning not certainly known or determined.

Judgment reversed. All the Justices concur.