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HARRISON v. MORRIS.
40222.
Trover. Thomas Superior Court. Before Judge Lilly.
BELL, Presiding Judge.
1. Where the plaintiff relies specifically on his title in seeking to regain the value or possession of logs which it is contended were cut and hauled from plaintiff's property, any recovery by the plaintiff must be predicated on the strength of his own title and not upon the weakness of the defendant's title.
2. The plaintiff: (a) had no prescriptive title under Code 85-406 as he could not have been in possession for the required twenty-year period;
(b) had no title under Code 85-407 after seven years of adverse possession as he does not have the requisite written evidence of title;
(c) had no title under the sections urged of Code Chapter 85-16 dealing with processioning procedures and effects as the sections relied on are limited to the determination of boundary disputes and do not create or establish title;
(d) had no title by oral agreement of coterminous owners fixing a disputed boundary line, as the effect of this procedure, like the Code sections dealing with processioning, must be limited to the establishment of boundary lines and not extended to include the creation or establishment of title.
This is a trover action in which the plaintiff seeks to recover the value ($488) of some 122 trees cut by defendant's agent from ten or eleven acres of property which plaintiff claims to own.
On August 26, 1943, the plaintiff, L. J. Morris, purchased from J. J. Scott some 125 acres in Land Lot No. 298 out of the 300 acres of land he owned which lay generally in a rectangular shape across the top portion of Lot 298. A country road ran east and west through the middle of Scott's holdings, and a stream known as Big Creek ran through his property at approximately the middle in a north-south direction, except for one "dog-leg" at a point known as the Scott Washhole from which the stream ran in a more southwesterly direction to the southern extremity of Scott's property.
The deed, dated August 26, 1943, from Scott to Morris describes the property as being bounded "north and west by original lot lines, on the east by Big Creek, and on the south by lands of C. O. Jordan." Plaintiff claims in addition that his southeast corner lies east of Big Creek, at the bend in the stream.
Plaintiff's evidence shows that at the time of the sale, or shortly thereafter, Scott and Morris, in the presence of several others, walked over the property and at that time agreed to straighten the eastern line of the property purchased and to extend Morris' line over to the east side of Big Creek to include a small triangle of land which would be the southeast corner of the purchased property. At that time Morris marked the line by blazing trees and burying iron stakes. In 1946, Morris erected a fence along this line.
Scott died in 1947 and, on September 2, 1947, his administrator conveyed to M. I. Clark (defendant's predecessor in title) all of the remaining land which Scott had owned. The administrator's deed contained a general description of the property which clearly includes the triangle of land in question, but plaintiff contends that a second description in defendant's deed, based on a surveyor's plat, did not include the triangle. When the property was sold to defendant, Alton Harrison, in 1950, the same two descriptions were used in the deed. Plaintiff contends that under these deeds the plot of land in question was not conveyed by the administrator to Clark, nor by Clark to Harrison, the defendant.
Plaintiff contends that, until Harrison cut his fence in 1961 and felled the timber which is the subject of this action, the plaintiff had enjoyed open, notorious and adverse possession of the acreage. His evidence shows that he fenced the property with several strands of barbed wire in 1946 and has continuously cut timber, grazed stock, cultivated tobacco, hunted and gathered fire wood. He alleges that an agent for Harrison entered the property only once (prior to 1961) to cut several loads of pulpwood and some poles for tobacco beds and that when Morris complained the defendant withdrew. Defendant's evidence sharply disputes the extent to which plaintiff exercised dominion over the small acreage involved here since defendant purchased the property in 1950.
In his main brief before this court plaintiff concludes "that the dispute boils down to one between two parties--the first claiming a small tract of land not included in the description from his deed but taken by mutual consent of the adjoining landowner (from whom he purchased) with a well-established line indicating their agreement--and on the other hand, a party claiming as a successor in title from this common grantor under a deed which embodies the tract in dispute by the general description contained therein but clearly does not embody the tract in dispute, according to the description of particulars containing metes and bounds. The first party (plaintiff in the lower court) having enjoyed all the elements of control and possession since his purchase, and the other parry (defendant in the lower court) having attempted possession at one time in the past."
The jury returned a verdict in favor of the plaintiff for the full amount. Defendant filed a motion for new trial on the general grounds and two special grounds objecting to the admission of certain evidence. After the trial court's denial of defendant's motion for a directed verdict filed after all the evidence was in, defendant filed a motion for judgment notwithstanding the verdict, alleging that plaintiff failed to prove title to the land and therefore to the timber in question, and again objecting to the admission of certain evidence.
This appeal is brought from the trial judge's adverse rulings on both motions.
1. The plaintiff in this action relies specifically on his title to tile 122 logs in the defendant's possession in seeking to regain their value or their possession. The growing trees before severance were a part of the realty and, as between these parties, the title to them before and after the severance necessarily follows the title of the land. There is no question in this case as to any contract or other legal relation which would render the mere possession of the logs an issue. The sole question rests upon the validity of the plaintiff's claim of title to the realty from which the logs were taken. It follows that for the plaintiff to recover, he must do so on the strength of his own title and not upon the weakness of the defendant's title. Grace v. Grace, 92 Ga. App. 693 (89 SE2d 813).
2. We have reviewed every possibility of title in the plaintiff which may be implicit in the record and the briefs of counsel, and there is nothing to suggest that plaintiff has title.
(a) Plaintiff clearly has no prescriptive title to any land on the east bank of Big Creek based on twenty years of actual possession without color of title, under Code 85-406. Assuming arguendo that his possession fulfills the requirements of Code 85-403 defining actual possession, at best his possession could not have begun until 1943 when he secured his deed, or perhaps not until 1946 when, with the permission of his grantor, he fenced the land now in dispute. This suit and answer were filed in 1961. Therefore, the required twenty-year period of possession could not possibly have passed.
(b) Plaintiff cannot claim title under Code 85-407 which provides for acquisition of title after seven years of adverse possession of lands, since this section requires plaintiff to have written evidence of title, and he has none. His written deed expressly made Big Creek his eastern boundary. The triangle of realty in dispute lies east of Big Creek.
(c) Plaintiff also relies on several sections from the chapter on processioning. Code 85-1602 provides in part that "acquiescence for seven years, by acts or declarations of adjoining landowners, shall establish a dividing line." Code 85-1603 states that: "Where actual possession has been had, under a claim of right, for more than seven years, such claim shall be respected, and the line so marked as not to interfere with such possession."
The Supreme Court has held, however, that these Code sections from Code Ch. 85-16 do not apply to the establishment of title. As Mr. Chief Justice Duckworth stated it, "The acquiescence rule in the Code section [ 85-1602] will in no case create or establish title; but where a proved title, by a fair construction, will embrace the lands up to the line established by acquiescence, then under this section title comes from the source proved, and acquiescence fixes the dividing line." (Emphasis supplied.) Veal v. Barber, 197 Ga. 555, 563 (30 SE2d 252). In Warwick v. Ocean Pond Fishing Club, 206 Ga. 680, 683 (58 SE2d 383), the Chief Justice said "the description in the respective deeds must be such as would include the land up to the established line. This is manifestly true for the reason that title could not pass by mere acquiescence."
In relation to Code 85-1603, Mr. Presiding Justice Beck stated that: ". . . to make that line as a matter of law the true dividing line, in a suit for land where title is involved, it should be made to appear that the defendants had good paper title to the land up to that line and had had bona fide possession of the same for a period of seven years." (Emphasis supplied.) Standard Oil Co. v. Altman, 173 Ga. 777, 779 (161 SE 353); Wight v. Davis, 202 Ga. 239, 241 (42 SE2d 641).
In this case title is the determining factor involved and not the true location of a boundary line, and under these precedents Code 85-1603 is inapplicable. And see Spillers v. Jordan, 96 Ga. App. 426, 433 (100 SE2d 483), where our Judge Townsend said that "the safest rule" is to apply Code 85-1603 in processioning cases only.
(d) Plaintiff also claims title to the plot in question on the basis of the Supreme Court's ruling that coterminous owners may fix an indefinite, unascertained or disputed boundary line by oral agreement. Farr v. Woolfolk, 118 Ga. 277 (1) (45 SE 230); Gornto v. Wilson, 141 Ga. 597 (81 SE 860); Hart v. Carter, 150 Ga. 289 (103 SE 457). Again, however, these cases are concerned with a rule which relates to finding a boundary line rather than title to land. The problem before us is not a disputed boundary line problem. It is whether plaintiff can prove title to the acreage in question. Therefore, under the same rules applied to Code 85-1602 and 85-1603, plaintiff secured no title by oral agreement with the adjacent owner, Scott.
In addition, it has been firmly established that the "oral agreement" rule is inapplicable unless the line is disputed or unascertained. The record contains no evidence of a dispute between Scott and the plaintiff, nor does the description in the deed by Scott to plaintiff leave open a boundary question. Veal v. Barber, 197 Ga. 555, supra; Warwick v. Ocean Pond Fishing Club, 206 Ga. 680, supra.
The record revealing no theory upon which a recovery by the plaintiff was authorized, a verdict for the defendant was demanded. Accordingly, the trial court erred in overruling the defendant's motion for judgment notwithstanding the verdict.
The judgment is reversed with directions to the trial court to grant the defendant's motion for judgment notwithstanding the verdict and to enter judgment for the defendant.
Judgment reversed with direction. Hall and Pannell, JJ., concur.
B. B. Earle, Jr., contra.
Gainey & Gainey, Jesse J. Gainey, for plaintiff in error.
DECIDED OCTOBER 28, 1963.
Friday May 22 22:18 EDT


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