Wight v. Davis , 202 Ga. 239 ( 1947 )

In this suit, where the question was one of title and not of mere location of a boundary line, actual possession by one of the coterminous owners beyond the boundary called for in her deed, for more than seven years under a claim of right, was insufficient to establish as the true line the line up to which possession was so held.

No. 15746. APRIL 15, 1947. REHEARING DENIED MAY 16, 1947. Mrs. Rebecca S. Wight filed a suit in Fulton Superior Court, against Mrs. W. J. Davis, to recover a small parcel of land, triangular in shape, commencing on the dividing line between the plaintiff's land on the north and the defendant's land on the south, at a point near the western boundary of the two tracts. The north line of the triangle ran in an easterly direction, and the south line in a southeasterly direction. In the petition it was alleged that a store building erected by the defendant on her land encroached upon the portion of the plaintiff's land indicated by the above triangle. The defendant filed an answer in the nature of a cross-petition, seeking to have decreed in herself title to the land sued for, and other land which would be included if the northern and southern lines of the triangle were extended to the eastern boundary of the respective tracts.

The uncontroverted evidence showed the facts of the case to be as follows: The plaintiff and the defendant claim title to their respective land under separate chains of title, each of which originated from a common source, to wit, the Wesley G. Collier estate. The plaintiff and his predecessors had written title to all of the land in dispute. When the defendant purchased her land, the grantor, who held under a different chain of title from the plaintiff, pointed out what he said was the northern line of the property, which if true would have included all of the land in dispute. However, in executing a deed the defendant's grantor followed descriptions contained in his deed and the deeds of his predecessors in title, which did not include any of the land in dispute. The defendant claimed the property up to the line that was pointed out to her; and in 1936 commenced cutting down trees up to such line, and started filling the lot in with dirt. This filling in went on continuously through 1936, 1937, 1938, and 1939. The foundation for the store building was begun in 1938, and completed in the early part of 1939. Six months later, in October, 1939, the defendant began erecting the store building, and has been in possession thereof continuously ever since. The line to which the defendant cut down the trees and filled in the lot is the same as the northern line of the store building, and continues on back to the land lot line. The predecessors of the plaintiff never made known any objection which they may have had to the north line claimed by the defendant, and the first she knew as to any one contending that she was over her line was after the plaintiff purchased the land to the north. At the time the plaintiff purchased her property, she was informed by a surveyor that there was an apparent encroachment along what he had found to be the southern line of the property she was purchasing.

At the conclusion of the evidence, counsel for the plaintiff moved for a directed verdict, upon the ground that there was no issue of fact to be passed on by the jury. Counsel for the defendant also moved for a directed verdict, upon the ground that the uncontroverted evidence showed that the defendant had been in actual possession of the property up to the line claimed by her for more than seven years under a claim of right. After hearing argument on the motions, the court overruled the motion of the plaintiff, and granted the motion of the defendant, and the jury found a verdict as directed. The plaintiff excepted to the order overruling her motion and to the order granting the motion of the defendant to direct a verdict, and assigned the same as error. It is insisted that the court should have sustained the plaintiff's motion and directed a verdict in her favor, because the uncontradicted evidence showed that she had a perfect paper title to the triangle of land involved in her suit, and that the defendant had no title thereto because she had no paper title and no color of title, and had been in possession thereof less than twenty years, and because there had been no acquiescence by acts or declarations in the line claimed by the defendant for as much as seven years. "In order for prescription to be a foundation of a valid title, there must be actual adverse possession for the period of twenty years, unless such possession is under color of title, in which case the period of time is reduced to seven years; and in the event possession is asserted to have been under color of title, the actual limits described in the writing set up as color will not be extended to embrace other land, not included in the writing, merely because such land lying beyond the limits described in the writing has been taken possession of under a mistake and occupied for over seven years, though the party seeking to prescribe acted in good faith in extending his possession beyond the limits of the tract of land actually defined in his conveyance to contiguous land." LaRoche v. Falligant, 130 Ga. 596 (61 S.E. 465); Walton v. Sikes, 165 Ga. 422 (141 S.E. 188).

In Standard Oil Co. v. Altman, 173 Ga. 777 (161 S.E. 353), it was held to be error, in the trial of a suit to recover land, to instruct the jury in the language of the Code, § 85-1603, that "where actual possession has been had, under a claim of right, for more than seven years, such claim shall be respected, and the lines so marked as not to interfere with such possession." After pointing out that the question to be determined by processioners in a boundary dispute is quite different from the question to be determined by a jury in a suit to recover land, it was said on p. 779: "If the jury were led by the rule laid down in the last extract from the charge quoted, then mere actual possession by the defendants under a claim of right for more than seven years would be a good ground in the minds of the jury to establish as the true line here the line up to which defendants had held possession under a claim of right for more than seven years, whether they had actual paper title to the land up to that line or not. But to make that line as a matter of law the true dividing line, in a suit for land where title is involved, it should be made to appear that the defendants had good paper title to the land up to that line and had had bona fide possession of the same for a period of seven years."

What is said above accords with the decisions by this court inBarfield v. Birrick, 151 Ga. 618 (108 S.E. 43); Peeples v. Rudulph, 153 Ga. 17 (4) (111 S.E. 548); Smith v.Bailey, 183 Ga. 869 (2) (189 S.E. 905); and similar cases, holding in effect that, where a plaintiff in ejectment against the owner of an adjacent city lot shows prior possession under a color of title of the lot occupied by him, and where the defendant (adjacent lot owner) has shown no superior title to the lot thus occupied by the plaintiff, and where the only conflict in the evidence is whether the property sued for lies within the boundaries of the plaintiff's lot or within the boundaries of the adjacent lot of the defendant, the essential question, in determining title to the land in dispute, is one of boundary only.

The decision in Standard Oil Co. v. Altman, 173 Ga. 777 (supra). also accords with the ruling in Jones v. Harris,169 Ga. 665 (151 S.E. 343). While in the last-mentioned case, which involved an action to enjoin the defendant from building a wall that the plaintiff contended would be over the dividing line and on his property, it was held that the trial court erred in failing to instruct the jury that the plaintiff relied on actual possession under a claim of right for more than seven years to establish the dividing line, it does not appear that either the plaintiff or the defendant was claiming title to any land that was not embraced in their respective deeds. As pointed out by the court, the only issue was as to the location of the dividing line.

Upon request to review and overrule the decision in StandardOil Co. v. Altman, supra, the ruling therein made is adhered to and the request of counsel for the defendant in error that the case be overruled is denied.

Applying the above principles of law to the pleadings and evidence in the present case, actual possession by one of the coterminous owners beyond the boundary called for in her deed, for more than seven years under a claim of right, did not have the effect of establishing the dividing line between the properties. Under the evidence in this case, a verdict for the plaintiff was demanded. It follows that the trial court erred in directing a verdict for the defendant.

Judgment reversed. All the Justices concur.