Opinion
19436.
SUBMITTED SEPTEMBER 10, 1956.
DECIDED OCTOBER 8, 1956.
Injunction. Before Judge Whaley. Treutlen Superior Court. May 15, 1956.
Jackson Graham, for plaintiff in error.
N. G. Reeves, Jr., contra.
1. Where, as here, there was evidence that the dividing line between the lands of the parties was as contended by the defendant, but also evidence that the plaintiff was in actual possession of some of the land over this line, having had it under fence and cultivation for more than 20 years up to the line which he alleges is the true dividing line established by agreement between the plaintiff and a predecessor in title of the defendant, the court did not err in charging the jury that, if the jury found by a preponderance of the evidence that the line is as contended by the defendant Wheeler, but that the portion now fenced by the plaintiff Phillips "has been lost to Phillips by adverse possession, or in any other manner enumerated by the court," in that case to find that portion for the plaintiff. The court fully charged on title by prescription, adverse, actual and constructive possessions, establishment of an unascertained or disputed boundary line by agreement or acquiescence, and that the jury might find for the plaintiff, or the defendant, or as charged above; and, at most, the above charge was more helpful than harmful to the plaintiff. There was ample evidence to support the charge, and the special ground complaining that the evidence did not warrant such charge is without merit. Code §§ 85-403, 85-406-85-408; 85-1602; Watt v. Ganahl, 34 Ga. 290; Dye v. Dodson, 201 Ga. 1 (1) ( 39 S.E.2d 8); Browne v. Johnson, 204 Ga. 634 (1, 2) ( 51 S.E.2d 416); Warwick v. Ocean Pond Fishing Club, 206 Ga. 680 ( 58 S.E.2d 383).
2. The evidence being sufficient to support the verdict, the court did not err in denying the motion for new trial as amended.
Judgment affirmed. All the Justices concur, except Wyatt, P. J., not participating.
SUBMITTED SEPTEMBER 10, 1956 — DECIDED OCTOBER 8, 1956.
This case is one to enjoin a trespass to prevent the defendant from cutting and removing certain timber cut on the plaintiff's land; and, in addition to the petitioner's prayers for a temporary and a permanent injunction, he prays that the dividing line between the parties be decreed to be established as contended by his pleadings. After a trial, the jury found for the defendant, but fixed the dividing line partly as contended by the plaintiff and partly as contended by the defendant, and awarded the value of the timber cut, as agreed between the parties, to the defendant. A motion for new trial, as later amended by adding one special ground, was filed, heard, and denied, and the exception here is to that judgment.