Shiver v. Hill

Gilbert, J.

It is insisted that the vice contained in the instruction of the court is in the employment of the conjunctive “and” instead of the disjunctive “or,” so as to make the rule of agreed boundaries apply only when the line is not only unascertained and uncertain, but also disputed; whereas the rule should have been made applicable where the line is uncertain, or unascertained, or disputed. In many adjudicated cases, as well as in the text-books and encyclopedias the words “uncertain,” “unascertained,” and “disputed” are treated as practically synonymous. These words are often used apparently on the theory that the use of either one or all of them leads to the same result. In 9 C. J. 234, it is said that “according to some decisions there must not only be doubt and uncertainty in respect of the true division line, but there must also be an actual dispute or controversy between the parties. In other decisions in which this question has been directly presented and passed on, the contrary view is maintained.” In a footnote to the text a .number of cases are cited pro and con. In this State the precise question has not been ruled upon.' The language of the decisions, however, conveys the idea that the words under consideration have been used as substantially synonymous. A line which is uncertain is unascertained; and while the coterminous owners may be content to accept the status quo and leave the line unestablished, such a course would be contrary to human nature. A boundary line, in point of fact, is in dispute where the respective owners are not in agreement as to its location. It is not necessary that they should be in actual controversy in or out of court. In the ease of Osteen v. Wynn, 131 Ga. 209, 214 (62 S. E. 37, 127 Am. St. R. 212), it is said: “Where there is room for controversy as to the location of a dividing line, the coterminous proprietors . . may orally agree upon the line: and if the agreement is accompanied by possession to the agreed line, or is otherwise duly executed, such agreement will be valid and binding, and the line thus defined will thereafter control their deeds.” Indeed, it may well be said that a “disputed” land line, to be the basis of a parol agreement, must also be uncertain or unascertained. It would be absurd to declare a bare or baseless dispute a basis for such agreement. There- can, of course, be a twilight zone where the degree of uncertainty would be infinitesimal. That, however, is not for consideration in this case. See Miller v. McGlaun, 63 Ga. 435.

The second and third headnotes require no elaboration.

Judgment affirmed.

All the Justices concur, except