Robertson v. Abernathy

1. The previous decision in this ejectment case did not hold, as the law of the case, that the verdict for the plaintiff in the previous trial was not authorized on the theory of seven years acquiescence in the dividing line. But even if it had been so held, the ruling would not have precluded his introduction at the second trial of different stronger evidence sufficient to authorize a recovery on that theory.

2. In the last or second trial the evidence for the plaintiff as to acts and declarations of acquiescence, which was even stronger than at the previous trial, was sufficient to authorize the charge on that theory and the verdict for the plaintiff, which was expressly limited to such theory.

3. No prejudice to the defendant appears from an inaccuracy in the instructions on the issue of acquiescence.

4. There was evidence for the plaintiff which fixed the location of the line acquiesced in, with sufficient definiteness to authorize the charge and the verdict on the theory of acquiescence.

No. 14453. APRIL 14, 1943. G. W. Abernathy brought an action of ejectment against L. M. Robertson, to recover a small strip of land as described, which was alleged to be part of plaintiff's lot 602, 1st district, 4th section of Haralson County, according to the alleged original boundary line between lot 602 and the contiguous lot 603 to the east; and according to an alleged acquiescence in the line by acts and declarations of the adjoining landowners for more than seven years. The defendant's answer denied the material allegations of the petition, and set up that the tract belonged to him as a part of lot 603 under his deed of purchase of the southern part of that lot. At the first trial the jury found generally for the plaintiff, and this court reversed the judgment. 192 Ga. 694 (16 S.E.2d 584). On the second trial the verdict was: "We, the jury, find the issues in the case in favor of the plaintiff, on the grounds of possession by acquiescence." The defendant excepted to the refusal of a new trial, and contends, under the general grounds, that the evidence was insufficient to show the legal essentials of acquiescence, or to locate the line as recovered with sufficient definiteness to render the verdict capable of endorcement. The special grounds, some of which merely elaborate these contentions, are indicated in the opinion.

As to acquiescence in any line and the location of any such line, Abernathy, the plaintiff, testified at the last trial that in about 1889 he had the former county surveyor, George Gentry, run not only the line now in question between plaintiff's lot 602 and the southern part of lot 603, now owned by the defendant, but the line between lot 602 and the northern part of lot 603, now owned by Bennett, and the line between plaintiff's lots 605 and 680 (south of lot 602) and the adjoining lots 604 and 681. In so running the boundary line, the plaintiff testified, that the surveyor found marked timber on a line that is still there — a large pine tree between lots 605 and 604, which was an original marked line tree, 125 or 150 yards south of defendant's tract, and a post-oak farther south, forming the corner between lots 680 and 681; that there was other marked timber on this line; that Cox owned lot 681 and cultivated his land up to such line; that the part of lot 603 owned by the defendant had been previously owned by negroes named Goggins and by W. A. Gentry, son of the former county surveyor; that plaintiff had not only cut timber from the tract in dispute, but had cultivated part of it down to where the line was, including about half of defendant's garden, and had been in possession of lot 602, up to the line now contended for by the plaintiff, for more than fifty years; and that the clearing of timber up to this line makes the line plain. While plaintiff testified that there was no agreement and nothing was said between him and Gentry or Goggins, the defendant's predecessors in title to the south part of lot 603, as to the line, plaintiff swore that the line was plain; and that "everybody that worked along there abided that line; they worked up to the line and turned . . the timber, cleared up to the line makes it so plain . . we have been cultivating it fifty years . . we cultivated part of the land sued for right along down to where that line was, and it was in cotton." Lonnie Goggins, son of the former owner of defendant's land, testified: "I was born and raised there until I was twelve years old. I know where the lines are along there, I know where they are now, I know where they were then. There hasn't been any change since I have been born and been away from there that I know of. The line now is regarded as it was then. There is marked trees on the line; there is a post-oak about 19 or 15 feet from [defendant's] house . . on this line . . it was there when I lived there. I think it has been about twenty-two years since I left. . . It is marked. That is supposed to be a line tree, they said that was where the old line was, and that's what our father always told us. . . The tree is close to the south corner of our lot; the angle iron is on the north corner. . . That was the line my father showed me; when we lived there we respected that as the line. . . We always tended right up to the line. . . I worked in the field myself. I worked up to that line. . . I remember some cultivation on [plaintiff's] side of the line, . . and he tended almost back to [defendant's] house. It wasn't fenced in along there, but on back up near [defendant's] house, [plaintiff] had an old fence there. It used to be an old rail fence, and he changed it to a wire fence. . . We cut wood on our side of the place, we never did come completely up to the line. . . I sold [our land] to Mr. Bud Gentry."

W. A. Gentry, the former owner just mentioned and son of the former county surveyor, testified that he owned his land there for ten or twelve years; that "my father showed me the line, he run it . . seems like he said forty-six years" before. "They showed me the line. I respected that as the dividing line between me and [plaintiff]. . . I was about six years old" when "old man Goggins, a negro," lived on that land on the branch, and "there was a fence there then. And when the stock law come, we done away with the fence, and there was a ditch up through there. I recognized it as long as I owned it; there was never no question that that was the line. I have known that line nearly all my life, something over 70 years. There has been no change in that length of time. I am familiar with the marked trees on it. There is a post-oak right in front of [defendant's] house, with a blaze on it, and then there is a pine this side that is recognized as the line; they are marked." Before defendant bought his land, the witness had shown him this line; "they recognized that as the line." "I showed him that line as it runs — that is as Mr. Abernathy [plaintiff] claims it. . . The original line going north and south . . runs straight through here. . . [Plaintiff] tended on the west side of that line every year that I lived there. My son lived there ten or twelve years. He tended that land up to that line." A. M. Abernathy, a son of plaintiff, testified that there was marked timber on the line — "a post-oak just this side of [defendant's] house, west of it, it is marked . . they are in a straight line . . on what is regarded as the line . . it is regarded as an original line. I have known it for more than forty years. I have never heard of it being questioned before. . . My father recognized it as the line. In my farming activities I [had] instructions with reference to that line. We was supposed to stop at that line on both sides. I can remember when the Gogginses lived on [defendant's] tract. My father had no trouble with them about the line, and we cultivated up on the other side. We all stopped at the line; the Goggins stopped at the line." Hiram Abernathy and J. E. Abernathy, sons of the plaintiff, testified to like effect as to the indication of the line by marked trees, the previous cultivation by the father to this line, and the absence of any change or question as to the line. R. C. Knight, a surveyor, testified that he ran the line in accordance with the request and the contention of the plaintiff then and now; that the witness struck marked trees along this line — a post-oak, a pine, and other trees in an extension of the line between the parts now in dispute; and that this line was a continuous one north and south beyond the disputed portion. The plat as thus made by the surveyor was in evidence. There was other testimony for the plaintiff, as to the location and recognition of the line, as contended by the plaintiff in this suit, south of the disputed tract.

For the defendant, L. M. Robertson, there was testimony by him and other witnesses, which contradicted evidence for the plaintiff, and disputed the correctness of the line contended for by the plaintiff, substantially as indicated in the previous decision (192 Ga. 694, 16 S.E.2d 584). There was testimony for the defendant to the effect that a line run by processioners, before the plaintiff discharged them from their duties before the completion of their return, was different from that claimed by the plaintiff; and that trees which the plaintiff claimed were marked and on the line were not marked-line trees, and were not on the line contended for by the plaintiff. There was also testimony that the line as observed by the plaintiff and Goggins when he lived on the defendant's land, and as observed by Bennett, the owner of the north part of the lot, the south part of which was owned by the defendant, was fixed at a ditch; and that the plaintiff never cultivated any land beyond this ditch, or on the defendant's side of such a line. A plat, identified by the defendant as correct, and showing the line for which he contended, was in evidence. The plaintiff denied the testimony that the ditch was the correct line or a recognized line. 1. In the former trial of this action of ejectment, involving title to a small tract of land, as controlled by the boundary line between plaintiff's "lot 602" and defendant's south portion of "lot 603," the jury found generally for the plaintiff. In that trial the plaintiff relied on three theories: (1) that the line for which he contended was the original line between the lots; (2) that the line had been established by acquiescence for more than seven years; and (3) that he had good prescriptive title by twenty years actual possession of the tract. The judgment refusing a new trial to the defendant was reversed by this court, because of a charge on the law of a twenty-year prescriptive title, in the absence of any evidence to sustain it. As to acquiescence, it was held merely that "even if the verdict was authorized under the general terms of such testimony, it was not demanded, as contended by the plaintiff," on that theory. Robertson v.Abernathy, 192 Ga. 694, 697 (16 S.E.2d 584). On the second trial the jury again found for the plaintiff, but expressly limited their verdict to the ground of "acquiescence;" and a new trial was refused. The previous decision of this court did not go to the extent of holding that the evidence on the theory of acquiescence did not authorize a verdict for the plaintiff, so as to make such a ruling, as now contended, the law of the case. But even if such had been the ruling, it would not control at the second trial, unless the evidence was "substantially the same."Hudmon v. Hill, 194 Ga. 841, 842 (22 S.E.2d 846). This is true, since, on a mere general grant of a new trial by a reversal in this court, the case stands for trial de novo, and neither party is precluded from introducing, if he can, new or stronger evidence to support his pleadings. If such evidence materially differs from that before this court in the previous record, a plea or contention of res judicata or law of the case will not avail. Hutchinson v. Caldwell Lumber Co., 146 Ga. 356 (3) (91 S.E. 208); Atlantic Coast Line Railroad Co. v.McElmurray, 14 Ga. App. 196 (2), 198 (80 S.E. 680);Jarrell v. Seaboard Air-Line Ry., 21 Ga. App. 415 (2) (94 S.E. 648).

2. "Acquiescence for seven years, by acts or declarations of adjoining landowners, shall establish a dividing line." Code, § 85-1602. In thus establishing a line by this authorized statutory method, "it is not essential that the acquiescence be manifested by a conventional agreement." Osteen v. Wynn, 131 Ga. 209 (3, b), 214 (62 S.E. 37, 127 Am. St. R. 212); Sapp v.Odom, 165 Ga. 437 (7) (141 S.E. 201); Farr v. Woolfolk,118 Ga. 277, 280 (45 S.E. 230), and cit.; Williamson v.Prather, 188 Ga. 545 (4 S.E.2d 140), and cit.; Anderson v. Black, 191 Ga. 627 (3), 635 (13 S.E.2d 650). Such acts or declarations by both landowners bind their respective successors in title. Sikes v. Mutual Benefit Life InsuranceCo., 182 Ga. 858 (187 S.E. 61), and cit.; McGill v.Dowman, 195 Ga. 357 (24 S.E.2d 195, 196 (2), 200), and cit.; Osteen v. Wynn, supra. Under the preceding rules and the testimony for the plaintiff, which was even stronger than that on the previous trial, the verdict for the plaintiff on the theory of seven years acquiescence, by acts and declarations of the plaintiff and of the defendant's predecessors in title, was authorized; and the judge did not err in charging the law thereon. No question as to any intervening prescriptive title in the defendant is involved under the evidence or verdict.

3. No prejudice to the defendant appears in the inaccurate instruction to the jury that the line which might be fixed by acquiescence was the "original line," instead of referring to the line, as described in the Code, § 85-1602, as the "dividing line." The court first correctly charged that this question involved the "dividing line," by stating in the language of the statute, that "acquiescence for seven years by act or declaration of adjoining landowners shall establish the dividing line;" and immediately thereafter said, "You may look to all the evidence in the case on both sides, and consider the evidence in determining where the original line is between the plaintiff and the defendant in this case." Under the evidence for the plaintiff, the original line and the acquiesced line were the same; and if the jury found for the plaintiff on either theory, under his evidence, the dividing line would have been the same. Under the evidence for the defendant, there was no fixing of a dividing line by seven years acquiescence, and the line contended for by the plaintiff was neither the original line nor an acquiesced line. The jury found for the plaintiff only on the theory of "acquiescence." Accordingly, if the instruction was harmful to either party, apparently it was injurious only to the plaintiff, by limiting too narrowly the question as to the original line, since the jury failed to find in his favor on that theory. However, in no event, could the charge have injured the defendant, in view of the identity of the line, according to the plaintiff's evidence, under either his theory that it was the original line between the lots or his theory that it was the dividing line by acquiescence; and in view of the defendant's evidence that such was not the line under either theory; and in view of the verdict that the line contended for by the plaintiff was the line, although the finding was based on the theory of acquiescence.

4. The verdict was not unauthorized, and the judge did not err in charging the law of acquiescence, on the ground that there was no evidence fixing the line acquiesced in with sufficient definiteness to render the verdict capable of enforcement. The surveyor's plat in evidence and the oral testimony as to the location of the line sufficed to authorize the instruction and the verdict for the plaintiff.

Judgment affirmed. All the Justices concur.