Herrin v. Bennett , 200 Ga. 53 ( 1945 )

1. The charge of the court that, "No survey shall be received in evidence unless it appears that at least ten days' notice of the time of commencing such survey was given to the opposite party by the one who offers it in evidence. Either party to an action may have a survey made without an order of the court upon giving the notice required. That refers to the plats in this case. These plats are admitted in evidence for such consideration as you may see fit to give them, and do not carry the presumption of the official survey as mentioned in the Code," correctly stated principles of law applicable to the facts of the case, and was not error for any reason assigned.

2. The parties having admitted title as claimed by each, and the only controversy being as to the location of the dividing line between their properties, the court did not err in charging, "If you find that the location of the line was uncertain, and the parties to this controversy, or their predecessors in title, while holding it, had acquiesced by acts or declarations for seven years or more in a dividing line between their lands, this would establish it."

3. The charge of the court that, "A land line can also be established, gentlemen, by agreement of adjacent owners. They agree where the line is, then that makes the line," did not, properly construed, amount to an expression of an opinion that the parties had agreed as to the location of the dividing line between their properties.

4. The evidence was sufficient to authorize the verdict in favor of the defendant, and the court did not err in overruling the plaintiff's motion for a new trial.

No. 15309. NOVEMBER 16, 1945. L. W. Herrin filed in Ware Superior Court, against B. E. Bennett, a petition to enjoin the defendant from working trees for turpentine purposes on a described five-acre tract of land alleged to be in the northeast part of land lot 181, in the 7th District of Ware County, and also seeking to recover damages. The defendant filed an answer admitting that he was working the trees, but averring that he owned the land and that the same was in the southeast part of land lot 142.

At the opening of the trial it was formally admitted that the petitioner was the owner of a large portion of land lot 181, including all of the northeast portion thereof, and that he had deeds covering the property. It was also admitted that the defendant was the owner of a large portion of land lot 142, including the southeast portion thereof, and that he held the same under deeds conveying the land to him. These admissions were made for the purpose of relieving both parties from introducing their respective deeds and chains of title; and it was further admitted that the question at issue was the location of the dividing line between their property.

L. W. Herrin, the plaintiff, testified in part: An old stump with a pine stob by it marks the corner post of lots 181 and 142. The old stump is about 90 feet north of the corner of the plaintiff's wire fence. When the plaintiff bought his land from S. F. Hargraves in 1903, Hargraves showed him the old stump, which at that time was about 20 feet high, and said, "Here is the corner to this land, and the old iron stob that was here when" he (Hargraves) "bought it." When the plaintiff bought the land, an old rail fence ran along the lot line. The old rail fence is not there now, but the sign of it is still there. According to the old citizens, the rail fence was on the line, or about five steps beyond it to the north, but when James Gillis ran the line somewhere back east, he moved the corner, and the original line was run from the corner agreed to by the plaintiff and W. N. Smith.

N. M. Pafford testified for the plaintiff: He was acting county surveyor up to the first of the year, and ran the line between lots 181 and 142 about 2 years ago. In running the line, he first checked with a prior survey made by Sam Kirton. He found Kirton's line and checked on an old stump at the northeast corner of lot 182. The witness then ran west to an old pine stump that had been burned or rotted off down pretty low. There was a little iron stob by the stump and some sign — crosses — on it. The old stump is a little northeast of the corner of the plaintiff's fence, and it is 90 feet from the fence to the line the witness ran. The stump marks the northeast corner of lot 181. The witness ran the line to the northwest corner of lot 181 and found a pine stake right up against a cross fence through Mr. O'Berry's field. Mr. Kirton's line did not go all the way through, but stopped at a creek. The witness checked along with old stakes, and followed Kirton's line on through. The line that the witness ran was the north land-lot line of 181 and south land line of 142. The five acres in dispute are between the plaintiff's fence and the line the witness ran. The witness found old blazes along the line he ran. On cross-examination, he stated that he was not personally familiar with the corners he was surveying, but that the corners were pointed out to him, and he checked on the southeast of lot 141 with the original line farther east to see if it was correct.

Several other witnesses testified for the plaintiff that they were familiar with the northeast corner of lot 181, and that more than 50 years ago John W. Cribb put the iron bar by the old stump.

The defendant introduced in evidence portions of the Code, § 23-101, for the purpose of showing that the corner of Clinch, Ware, and Atkinson Counties was established by an act of the legislature in the year 1850.

Thomas Mills Bennett testified for the defendant: He was 78 years old and was acquainted with the southeast corner of lot 142. The original corners of 141, 142, and 181 join. The corners are marked by a four-inch-square stake. When the witness was a boy the corner was pointed out to him by John Murray. The witness owned adjacent land in lot 141 for 37 years, and the lot corner was not disputed by anyone until the plaintiff disputed it. The corner of the three lots is within 3 or 4 steps of the plaintiff's wire fence.

David Lemual Brantley testified for the defendant: He was 73 years of age and his old home lot was 140. The southeast corner of lot 142 and the northeast corner of lot 181 are on the east corner of the plaintiff's fence.

G. E. King testified for the defendant: He recently had occasion to make a survey and ran a line between what was pointed out as lots 181 and 142. Starting from a point said to be the county-line post and going east, he found old blazes, a center tree properly marked, and a number of old trees marked with side swipes to show the line. The line that the witness ran went east from a stake at the southwest corner of lot 143 to a position 20 feet north of the corner of a fence situated at the southeast corner of lot 142. On cross-examination, he stated that the starting point to run a line was pointed out to him as the county corner at the west corner of lot 143. The line he ran went about 20 feet north of the corner of the plaintiff's wire fence. There was a difference of about 70 feet between the line that the plaintiff claims and the line that the witness ran.

Several other witnesses for the defendant testified that they were familiar with the county corner as well as the corners of lots 181 and 142, and that the line run by King was the correct line.

B. E. Bennett, the defendant, testified that before King surveyed the property he thought that the line ran along the plaintiff's fence, and admitted certain damage that he did to a cane patch and hog pen, which he thought were on lot 142, but which King's survey showed to be on lot 181. Each side introduced in evidence without objection several maps and plats.

The jury, on being instructed to specify the Pafford line if they found for the plaintiff, and the King line if they found for the defendant, returned a verdict "in favor of the defendant, the King line," and also found in favor of the plaintiff damages in the sum of $93.58.

The plaintiff filed a motion for new trial on the usual general grounds, which was amended by adding 3 special grounds complaining of the charge of the court. The exception is to an order overruling this motion as amended. 1. The first special ground of the motion for new trial complains of the charge: "No survey shall be received in evidence unless it appears that at least ten days' notice of the time of commencing such survey was given to the opposite party by the one who offers it in evidence. Either party to an action may have a survey made without an order of the court upon giving the notice required. That refers to the plats in this case. These plats are admitted in evidence for such consideration as you may see fit to give them, and do not carry the presumption of the official survey as mentioned in the Code."

Exception is taken to this instruction because: (a) "It was inapplicable to the evidence in the case, and was misleading and calculated to confuse the jury and did confuse the jury in determining the issue in said case, in that in the first part of said charge complained of is a correct abstract principle of law, but nowhere in the evidence is there mention of the ten days' notice being given, and the court, in stating ``that refers to the plats in this case,' charged the law that was not applicable to the evidence in the case." (b) "In giving the latter part of the charge which was applicable to the evidence in the case, the jury, as laymen, [were] unable to apply the law to the facts which were applicable, and if they applied the law to the first portion of the charge complained of, they considered the plat of the defendant as evidence of greater import to the defendant's case than the facts of the defendant's plat authorized or justified, and gave greater weight to the defendant's facts than the law authorized, and placed a lesser burden on the defendant to make out his case than should have been."

The first criticism is without merit, since the portion of the charge in reference to 10-days' notice, as provided in the Code, § 24-3355 (now Ann. Supp. § 24-3384), was later qualified by the trial judge by stating that the plats in this case do not carry the presumption of the official survey as mentioned in the Code. The second criticism is not meritorious, since the instruction complained of applied with equal force to both parties, each of whom offered plats without offering any evidence as to ten-days' notice. Though not official, the plats were admissible in evidence under the testimony of the respective surveyors as to their correctness. Wooten v. Solomon, 139 Ga. 433 (2) (77 S.E. 375); Roberts v. Atlanta Cemetery Association,146 Ga. 490 (3) (91 S.E. 675).

2. The second special ground complains of the charge: "If you find that the location of the line was uncertain, and the parties to this controversy, or their predecessors in title, while holding it, had acquiesced by acts or declarations for seven years or more in a dividing line between their lands, this would establish it."

The criticism is because: (a) "The defendant failed to show title by deed to the lands in controversy, and the defendant without showing color of title, although if he acquiesced for seven years, would not give the defendant title to the land in controversy." (b) "The plaintiff in said case contended that he had title to said property and was in adverse possession of same, and therefore title by prescription would not ripen in the defendant." (c) "The court in so charging led the jury to believe that the defendant, if he and the plaintiff, or their predecessors in title, acquiesced in a dividing line for seven years, that that was sufficient without the defendant having to prove that he had title to said property up to the line which he claimed, and this took away from the defendant the burden of proof that it was necessary that he supply, in order for the jury to be justified in returning a verdict in the defendant's favor, even if they did believe there had been an acquiescence between them for seven years."

In view of the admissions with reference to title of the parties, as shown in the preceding statement of facts, there is no merit in this contention, since both parties had legal title to adjoining tracts of land.

3. The third special ground complains because the court charged: "A land line can also be established, gentlemen, by agreement of adjacent owners. They agree where the line is, then that makes the line."

The criticism is because "the court expressed his opinion that there had been an agreement between the parties to this controversy, which was an issue for the jury to determine, and the court in so charging invaded the province of the jury."

There is no objection to the above charge as being an incorrect abstract statement of the law, but it is excepted to only as an expression of opinion. In using the words, "they agree," the court was clearly attempting to explain to the jury how such an agreement as to the location of a dividing line might be executed, and was not expressing any opinion of fact that in this case the parties had "agreed" to a line.

4. The evidence though conflicting as to the location of the dividing line between the properties of the parties, was sufficient to support the verdict in favor of the defendant, and the judge did not err in overruling the plaintiff's motion for a new trial.

Judgment affirmed. All the Justices concur.