McNeal v. Carter , 191 Ga. 441 ( 1940 )

It is contended that there was a short gap between the boundary branch on the west and the boundary creek on the south, and that this necessarily rendered the western boundary of the tract now claimed by the defendants uncertain and indefinite, and that because of these physical facts it was necessary in the interest of certainty and definiteness that the parties to the original transaction fill up this gap by agreeing upon an artificial line. The boundary branch referred to by the movants (defendants in the court below) is the branch designated in the testimony and in the deed under which the plaintiffs claim, as Fish Pond Branch, and it is suggested that we have overlooked testimony of the first vendee from the common source to the effect that this branch flowed into a slough or baygall, a wide flat swamp with a lot of undergrowth, and according to the testimony of this witness the branch ended on entering the slough or baygall. According to the testimony of the same witness, from the point where it was contended the branch thus ended, he in the presence of the husband of his vendor crossed over to dry land, and marked trees from that point to Satilla Creek along a straight line, leaving the slough or baygall some distance to the east. The timber in controversy was situated on the tract lying between this "artificial line" and the slough or baygall. The movants invoke the rule that where a line is disputed or unsettled and indefinite, coterminous landowners may by oral agreement establish a line, and that such agreed line would become binding between the parties to such agreement and purchasers from either without notice. The following among other decisions are relied on: Bridwell v.Brown, 48 Ga. 179 (3); Farr v. Woolfolk, 118 Ga. 277,280 (45 S.E. 230); Osteen v. Wynn, 131 Ga. 209 (3) (62 S.E. 37, 127 Am. St. R. 212); Shiver v. Hill, 148 Ga. 616 (97 S.E. 676); Hart v. Carter, 150 Ga. 289 (103 S.E. 457). We do not think the rule as to settlement of uncertain and indefinite dividing line is applicable under the facts of this case.

The deed under which the defendants claim, being the first deed from the common source, described the land as bounded on the west and south by a certain branch and Satilla Creek. The evidence showed without dispute that the branch thus referred to was Fish Pond Branch. The deed under which the plaintiffs claim, being the second deed from the common source, described the land as bounded on the east by Fish Pond Branch and on the south by Satilla Creek. It appeared without dispute that the branch and creek, except in times of drought, were connected by a slough formed by normal flow from the branch and flow or backflow from the creek. In these circumstances, both deeds should be construed as fixing the boundary by the branch and the creek, with the slough considered as a part of the waters, either of the branch or the creek, or the waters of both, and as being the connecting link between these two streams for the purpose of boundary if they did not connect directly, as was implied by both deeds.

Just where the line should be fixed as within the area of the slough, or baygall as it was sometimes called, — whether on one or the other of the opposite banks or at some intermediate place, is not a question for decision in this case, since, as indicated in the original opinion, whatever might be the true dividing line within this area, the timber in controversy was situated clearly without the space or area covered by such slough or baygall. While this statement might still seem to leave the true line indefinite and uncertain to a limited extent, yet under a proper construction of both deeds such uncertainty must be limited to the area described in the testimony as the slough or baygall, and so in any view as to where the line should be located in reference to this area, the testimony as to such oral agreement was irrelevant and inadmissible as attempting to establish an artificial line entirely apart from anything described in the deed as the boundary line and contrary to the written terms thereof. Accordingly, such agreement between the common vendor and the vendee under whom the defendant claims was not binding upon the subsequent vendee under whom the plaintiffs claim.

The boundary as stated in the deed to the latter vendee should, as in the deed to the former vendee, be construed as defining the branch and the creek as the boundary line, treating them as connecting streams, subject to what has been said above as to the slough or baygall; and if the line as thus defined should be indefinite at any point, it should nevertheless be determined within the area of the slough or baygall, consistently with the deed under which the defendants claim.

The oral agreement, having thus sought to establish a line in utter disregard of the boundary defined in the first deed and in contradiction thereof, was ineffectual as against a subsequent purchaser without notice, and under the evidence as a whole the verdict in favor of the defendants was contrary to the evidence and without evidence to support it.

The movants themselves refer to an "artificial line," which they contend was established by the oral agreement. The parties to the deed under which the movants claimed could not at the time of its execution establish by oral agreement an "artificial line" contrary to the terms of the written instrument, such as would be binding on a subsequent innocent vendee from the common vendor.

The foregoing deals with the substantial question raised in the motion for rehearing, even if some subsidiary questions may have been argued. It follows from what has been said that the motion for rehearing is without merit, and is denied.