1. "Possession to be the foundation of a prescription must be in the right of the possessor, and not of another; must not have originated in fraud; must be public, continuous, exclusive, uninterrupted, and peaceable, and be accompanied by a claim of right. Permissive possession cannot be the foundation of a prescription, until an adverse claim and actual notice to the other party." Code, § 85-402.
2. "Adverse possession is usually a mixed question of law and fact — whether the facts exist which constitute adverse possession, is for the jury to judge. Whether, assuming the facts proven to be true, they constitute adverse possession, is for the court to decide." Paxson v. Bailey Park, 17 Ga. 600.
3. "Where there is some evidence on both sides, even though the verdict be against the strong preponderance of the testimony, unless that preponderance be so great as to be suggestive of improper bias or gross misapprehension, and that to an extent which shocks the understanding and moral sense, a reviewing court will not disturb that verdict." Powell v. Bigley, 14 Ga. 41; Porter v. Kolb, 46 Ga. 266; Stevens v. Middlebrooks, 77 Ga. 81.
4. The exception in the instant case, involving title to an entire 40-acre land lot, is to the overruling of a motion for new trial based only on the general grounds. The jury returned a verdict for the plaintiff who relied upon an unbroken chain of title back to the State grant, against the defendant who sought to establish prescriptive title by reason of having cultivated a portion of the lot and having had the remainder under fence from 1902 until 1917, after which the entire lot was claimed to have been under fence. A question of fact was presented by the evidence, hereinafter set forth in the statement of facts, as to whether or not any of the land testified to by the defendant and his witnesses as having been under cultivation prior to 1917 was in fact a part of the disputed lot; and since there was no evidence by way of plat or diagram which would indicate the actual boundaries of the lot, the testimony of various witnesses with respect to different parcels of land having been under cultivation by the defendant was too vague, indefinite, and uncertain
to demand a finding that the land testified to was a part of the 40-acre lot here involved; nor does the testimony show what portion of the lot was under fence prior to 1917. Furthermore, an additional question of fact was presented as to whether or not the defendant actually held such land adversely, according to the definition, for the prescribed 20 years subsequently to 1917, since there was testimony that one of the plaintiff's predecessors in title had taken possession of the disputed lot in 1925 and exercised ownership thereof by tearing down the fence testified to, and by cutting timber thereon; and in view of other testimony, even though disputed, that such fence was later restored and extended to include the disputed lot by permission of another of the plaintiff's predecessors in title in 1933. Accordingly, under the rulings set forth in the preceding division of this syllabus the determination by the jury of the questions of fact thus presented by the evidence will not be disturbed.
Judgment affirmed. All the Justices concur, except Candler, J., disqualified.
No. 16179. APRIL 13, 1948.
STATEMENT OF FACTS BY JENKINS, CHIEF JUSTICE.
Fouts brought suit to enjoin Thompson from operating a sawmill upon a specified 40-acre lot of land, and for damages resulting from an unauthorized cutting of timber upon such lot. On the trial the plaintiff Fouts made out a prima facie case by introducing in evidence deeds showing an unbroken chain of title back to the State grant. The defendant Thompson sought to establish prescriptive title in himself by proving that he had been in adverse possession of the disputed lot since 1902, in that most of said lot had been under fence since that date, and the part not under fence had been under cultivation until 1916 or 1917, after which all of the lot had been under fence. The boundaries of the lot in dispute were nowhere shown either by plat, diagram, or testimony. The following excepts from the testimony with respect to certain land being under cultivation prior to 1917, which land was not under fence and which it is claimed by the defendant was a part of lot No. 784, are taken from the testimony of the defendant's own witnesses. W. F. Price, who lived on the defendant's farm in 1902, testified: "I know where land lot 784 is or about where it is. . I don't remember cultivating any part of land lot 784 down there. I didn't know about the number of the lot. I cultivated the land north of 784." On cross-examination he testified: "During the time I lived on the
Thompson farm there was not any part of lot 784 in cultivation that I remember. During the time I have known lot 784 only a little patch or two has been cultivated — just small patches. Since I have known lot 784 I couldn't say definitely it had all been under fence." Frank Ryder testified for the defendant: "I lived on the Joe Thompson farm about 1904-5. At the time I lived on the J. W. Thompson farm I don't know about cultivating any part of land lot 784 down there. I don't know about the number of the lot. I cultivated some of the land in Rich Hollow — near the John Bird house. . . I don't know whether that is on lot 784 or not." N.E. Grant testified: "I don't know lot 784 by number, but I know what they call the Rich Hollow. I cultivated in Rich Hollow." On cross-examination he testified: "I don't know anything about where land lot 784 is, only what Mr. Thompson told me. As to how many acres or how many land lots of 40 acres each was enclosed in that fence down there, I would have to sort of guess at it; I guess there was 200 acres, maybe more in that pasture." Sam Anderson, who lived on the Thompson farm in 1910, testified: "At the time I lived on it [Thompson farm], I didn't know it by numbers, but I know the place known as Rich Hollow. I did cultivate some land close to where that old well place was. If that old well place was where the John Bird house stood, it wouldn't have been more than 200 yards, I don't guess, from Rich Hollow." There is similar testimony of other witnesses with respect to land in the vicinity of Rich Hollow having been under cultivation prior to 1917, but none of it definitely and unequivocally identifies such land as being within the boundaries of land lot 784; nor does any of such testimony show what portion, if any, of said lot was under fence. With respect to adverse possession subsequently to 1917, when the defendant claims to have put all of said lot under fence, Tom McGee, a witness for the defendant, testified in part: "I moved to the Thompson place in 1922, and when I first moved there, there was a fence that ran up near where Mr. McClure lived at that time. One side of that fence is there now and one side is not. Roe Cape is supposed to have moved one part of it. I don't know who had him to move it. That fence ran about as far as from here to that store over there from the McClure
house. That fence next to McClure's house is not there now. I think Cape [plaintiff's predecessor in title] moved in ``25; I think is when he tore that out and moved it. I don't know who had him move it. I don't know where he moved it to. There is a fence in there now, we had to put the fence back. It is pretty near now right where it was then. We put the fence back there in ``25 I think." On cross-examination this witness further testified: "I said in ``25 Cape or somebody tore this fence down. I don't know who done it. Cape was the man who contended he owned 784. I don't know that Cape was claiming that lot. I said a minute ago somebody was claiming it." W. A. Hicks, one of the plaintiff's predecessors in title, testified for the plaintiff: "I don't remember whether or not I discussed with Thompson the lot by number 784. I went into possession of the property there, that I thought was 784, and cut timber off that and kept it as long as I held the deed to the property." This testimony was corroborated by John Pinion, who testified for the plaintiff that he had recently visited the lot in question and had cut timber on it for Mr. Hicks in 1924. There is yet other testimony to the effect that the fence on one side of the lot in question was extended in 1933 so as to enclose all of the lot by permission of another of the plaintiff's predecessors in title; but the testimony is in conflict as to whether or not the lot here involved was or was not already under fence before the permissive extension of such fence. The jury returned a verdict in favor of the plaintiff, and the exception is to the order denying a new trial on the general grounds only.