McNeill v. Daniel

Pee Curiam.

The occupancy by the grantee in a deed of land upon which there is timber, though such occupancy be open, notorious, and in good faith, and though the occupancy has been continuous for such length of time as required by law to give the grantee a good prescriptive title to the land, does not conclude a prior lessee of the timber upon the land under a lease executed by the predecessor in title of the grantee and duly recorded. Such occupancy by the grantee in the deed is consistent with, and is not as matter of law adverse to, the possession of the prior lessee. That being true, no title by prescription would arise against the lessee; and the court erred in ruling upon the admission of evidence, and in charging principles of law contrary to what is said above. Civil Code (1910), § 4164; Moore v. Ensign-Oscamp Co., 131 Ga. 421 (62 S. E. 229).

Judgment reversed.

All the Justices concur, except Mill, J., who dissents, and Mines, J., absent for providential cause. Hitch, Denmarh & Lovett, for plaintiff in error. Fleming & Fleming, contra.