Hillside Cotton Mills v. Bartley , 156 Ga. 271 ( 1923 )

Pee Curiam.

1. Where a tract of land is subdivided and -is subsequently found to contain either more or less than the aggregate amount called for in the surveys of the tracts within it, the proper course is to apportion the excess or deficiency among the several tracts. 9 C. J. 295, § 360, and eases cited.

2. But where there is a shortage in the actual land subdivided, and platted into lots and blocks with intervening streets, each block should, if possible, be treated as distinct, and the shortage therein should be distributed among the lot owners, except so far' as possession has fixed the limits. Quinnin v. Reimers, 46 Mich. 605 (10 N. W. 35) ; Anderson v. Wirth, 131 Mich. 183 (91 N. W. 157).

3. There being, in the amendment offered by the defendant to its answer, no allegation that it is not possible to treat separately the block in which the lot in dispute is located, and that there is any shortage in this block, the court did not err in sustaining a demurrer to such amendment, and in omitting to give to the jury instructions on the theory that the defendant was entitled to apportionment on account of shortage not shown to exist in such block.

4. There is no error in any of the other assignments of error.

Judgment affirmed.

All the Justices concur, Russell, G. J., specially. Atkinson, J., concurs in the result.