Opinion
22683.
ARGUED OCTOBER 12, 1964.
DECIDED NOVEMBER 19, 1964.
Injunction. Laurens Superior Court. Before Judge Ward.
E. L. Stephens, Jr., for plaintiff in error.
William M. Towson, contra.
Where, as in the present case, the evidence supports the verdict, there is no error in overruling a motion for new trial made on the general grounds.
ARGUED OCTOBER 12, 1964 — DECIDED NOVEMBER 19, 1964.
J. B. Bedingfield brought his equitable suit against Clayton Brewer in Laurens Superior Court. The averments of the petition were: that the plaintiff owns Lot 93 in the 16th Land District of Laurens County; that the defendant owns part of Land Lot 88 which is adjacent to and northeast of the plaintiff's lands; that the northeast side is bounded by an old fence and hedgerow, which fence was erected by predecessors in title in 1928 and has been continuously recognized and acknowledged as the land line and line fence between the lands; that for 30 years, from 1928 until 1958 when Julius McGlohorn conveyed the land to the defendant, the plaintiff and his predecessors in title were in quiet, peaceful, open and notorious possession of the land lying southwest of the fence; that the fence has been cut and the defendant has run barbed wire across the plaintiff's land 27 feet southwest of the land line and has placed turpentine cups upon trees on the plaintiff's land; that such acts of trespass are continuous and the plaintiff has suffered irreparable damage. The prayers of the petition were that the defendant be temporarily and permanently enjoined from trespassing on the plaintiff's lands, especially southwest of the old fence, and from cutting, damaging or removing further any portion of the old fence and hedgerow.
The defendant answered denying the material allegations of the plaintiff's petition and "by way of cross action" alleged: that the defendant placed his barbed wire fence two feet inside his line as pointed out to him by his immediate predecessor in title; that the "old fence" was merely a field fence and has never been recognized, acknowledged or acquiesced in as the land line; that the barbed wire fence erected by the defendant was cut while stock was pastured therein; that, on another occasion, the plaintiff and one of his employees cut and destroyed the fence for approximately 12 to 13 hundred feet; that many of the posts were removed and carried away and the defendant's turpentine cups were knocked off; that such acts constituted a wilful and continuous trespass, being a deliberate attempt to interfere with the defendant's peaceful possession and take his land. The defendant prayed that the plaintiff be temporarily and permanently enjoined from going upon the defendant's lands, from removing or destroying either the fence or the turpentine cups, and that the defendant recover $500 as damages (for the plaintiff's action in wilfully destroying the fence and interfering with the defendant's peaceful possession and use of the property as a pasture).
The cause came on for trial before a judge and jury at which the following evidence was adduced.
The defendant contended the true line between his lot and that of the plaintiff was a straight line between the point where he contended they cornered with Lots 89 and 92 to a certain corner with Lots 87 and 94. The plaintiff contended the true line between Lots 88 and 93 was along the course of the fence described in his petition as marking the boundary line of the two lots. Each party submitted some proof in support of his position. The deeds under which each party held title to his lot described the property conveyed as bounded by the other lot without more definitely defining its boundary.
The plaintiff testified generally that the defendant's predecessors in title had acquiesced in the fence as the line between the two lots. However, he did not give the names of any of these predecessors nor disclose the time during which any of them held title to the lot eventually owned by the defendant. From the evidence submitted by the plaintiff it appeared the fence referred to in his petition as marking the boundary between the two lots consisted of a woven wire fence and a barbed wire fence joined together. The plaintiff himself testified that the woven wire part of the fence was built by a tenant of Ben Burch in 1928 or 1930 for the sole purpose of enclosing and protecting the tenant's crops; that when the fence was constructed both Land Lots 88 and 93 were owned by Burch. There was no evidence that the fence was built at the owner's behest, with his consent, or that he even had knowledge that it was erected. The plaintiff's own testimony showed that this fence was not on the line between the lots; that it followed an irregular course along a branch; that it had long since fallen into decay, a considerable part of it was down; and that it really had not, for many years, been a fence at all. The plaintiff's only witness who professed to know the origin of the barbed wire fence testified that he was employed in the 1930's, of the exact year he could not be certain, by Jesse Bryant to construct a barbed wire fence along the line between Land Lots 88 and 93 and this line was pointed out to him by Bryant. However, the same witness on cross examination positively swore that the fence he had reference to on direct examination was built by him on the opposite end of Lot 88 from where that lot lay adjacent to Lot 93. In addition to that, the plaintiff and other witnesses who testified in reference to the barbed wire fence described in the plaintiff's petition as marking the dividing line between the two lots stated it was a two-strand and not a three-strand fence.
The evidence did show that J. B. Davis, one of the defendant's predecessors in title, cultivated only up to the fence but not south or west of the barbed wire fence. However, Davis appeared as a witness and his testimony was undisputed that the old fence was in such bad condition as early as 1938 that it failed to function as a fence at all and that his cattle roamed beyond the fence and far over on Lot 93 during the period that he owned Lot 88.
It is true that the plaintiff testified that one of the defendant's predecessors in title, Jesse Bryant, acquiesced in and acknowledged that the fence was the boundary line. However, the plaintiff's deed to Land Lot 93 showed that he did not acquire title to the tract of land until December 17, 1946, and that Jesse Bryant conveyed his interest in Land Lot 88 to Julius McGlohorn on January 2, 1946. Hence, Jesse Bryant had no title to the lot in question when the plaintiff bought his Lot 93 and had no title at the time he allegedly agreed to the boundary line.
The plaintiff undertook to prove that since he acquired his title to Lot 93 on December 17, 1946, the defendant's predecessor in title, McGlohorn, and the defendant himself had acquiesced in the fence as marking the boundary line between the plaintiff's Lot 93 and the part of Lot 88 owned by the defendant. The plaintiff testified in this behalf that McGlohorn had, in 1948, cut pulpwood and timber up to the fence but not southwest of the same and that McGlohorn had never cultivated the land southwest of the fence. He also testified that he had kept cattle in the vicinity of the fence and had cut firebreaks within a few feet of the fence each year since he had owned the property. His testimony did not disclose how frequently he kept cattle on what he termed his side of the fence or in what number. From his testimony it was not clear whether he kept any cows in the pasture for any seven-year period during the time McGlohorn and the defendant owned the southern part of Land Lot 88. McGlohorn testified that he lived in Macon for 12 years prior to the suit and it was not shown that he knew anything concerning the plaintiff's activity in pasturing the cows on the southwest side of the fence. McGlohorn further testified that he did not cultivate across the fence because he had all the land he wanted in cultivation and did not care to clear up a new filed. While he admitted he did not cut timber beyond the fence, he explained he did not do so because he was saving the timber situated there to make repairs on his dwelling. However, he never made the repairs on the dwelling. He positively swore that he did cut trees to which the fence was nailed.
An employee of the plaintiff testified that about eight years previous to the trial he had repaired the barbed wire fence the plaintiff contended was located on the boundary line between his lot and that of the defendant. The witness described the fence as being a two-strand barbed wire fence. He related that he placed a third strand of wire to the fence and installed some new poles; that, at the time, the plaintiff kept some cows on his lot southwest of the fence but had, during the previous year, ceased to keep cows.
The defendant's father testified that he owned Lot 89 adjoining Lots 88 and 93 since 1934 and lived in the vicinity since that time; that he was familiar with the location of the line between the lots. He described the corner of Lots 89, 92, 88 and 93 as a lightwood knot "hewn off and made sharp in the forecepts, kinda squared off on ever side of it, and drove down in the ground." He related that recently someone had pulled the knot up from its placement and a hole was left where another corner marker had been substituted in its stead. The witness testified the line between the part of Lot 88 owned by the defendant and Lot 93 lay along the course contended for by the defendant. He testified the fence which the plaintiff contended was on the line between the lots was crooked and was just an old field fence, not located on the line, which curved around and was down in many places and for long spaces there was no fence and has never, since he had known it, been in condition to hold cattle or keep them in place. He added that he had never known cows to be kept south of the fence on the southwest side of the same.
The county surveyor testified that he had previously surveyed the line between the southern part of Lot 88 and Lot 93 and that he did so again, recently, at the request of the defendant. He related the natural land marks, artificial markings and the location of the land lot corners which he observed in making the survey. He made a plat of the defendant's lot showing the location of the fence, that it followed a crooked course over a large part of its length and was 27 feet on the defendant's side of the true line. He gave testimony that the hedgerow along the course where the old fence was placed was also crooked and it "didn't even run or tend to run on the land line." He marked the course of the fence on the plat, as is shown by a copy of the plat here inserted:
The plat was admitted only for the purpose of showing the defendant's contention as to the location of the line. However, the defendant testified without objection that the plat showing the fence and its contours was approximately correct.
The defendant testified that he had been familiar with the land that he owned since childhood; that he had helped McGlohorn, his predecessor in title, survey the lines of the lot. He corroborated the surveyor's testimony as to the natural and artificial markings on the land and as to the corner "stob" where the four lots cornered. He further related that when he bought his part of Lot 88, by deed dated November 3, 1958, from McGlohorn he went into possession of the same and placed a barbed wire fence on the line between his lot and that of the plaintiff. He testified that the old woven fence did not follow a regular course, "but was all over the place"; that when he went into possession there was a two-strand barbed wire fence above the true line between his property and that of the plaintiff; that he removed this fence when he constructed his own; that the plat of his land showing the course of the woven wire and barbed wire fence was approximately correct.
Concerning the damage he claimed, the defendant related that his barbed wire fence was twice cut down and finally entirely destroyed. He described this destruction: the barbed wire was cut on each side of the posts, but not every post; that "there'd be one maybe left and way on down maybe a hundred yards or 150 yards there'd be another" post but most were removed; that "later on then they come back and where they did miss a place why it was cut and more post moved, so you might say there's nothing left there"; that he put the fence back. Then, "the fence was cut down, the post pulled up, drug over on the other side of the line, my turpentine cups taken off my land, throwed over on the other side the line. They wasn't taken off and throwed down at the tree where they was taken off at. They was throwed over the line, that's where they was found." The defendant testified that at one time when the fence was cut down he had 18 head of cattle in the enclosure and they were turned out in the open. In reply to a question as to the amount of damages he claimed as a result of the plaintiff's activity in cutting the fence, he stated he was asking $500 damages and added: "I think that's very, very little for the trouble that's it's caused, and the damage that it's done."
The jury returned a verdict finding for the defendant, including the sum of $200 as damages. The trial judge entered a judgment upon the verdict which permanently enjoined the plaintiff from trespassing on the defendant's land, established the line substantially as contended for by the defendant and rendered judgment for the defendant in the sum of $200 as damages.
The plaintiff filed his motion for new trial on the general grounds only. The motion came on for hearing at which time the trial judge overruled the motion for new trial. From this judgment the plaintiff excepted and assigns error.
This is an equitable case involving a controversy between coterminous land owners as to the boundary line between their land lots. The plaintiff contended the line was marked by an old fence erected by the parties' predecessors in title and recognized for thirty years as following the course of the dividing line. His proof utterly failed to establish as a fact that the fence was constructed by a predecessor in title of either party and fell short of showing any recognition of the fence as being upon the line until the plaintiff purchased and went into possession of his lot in the year 1946. The plaintiff submitted evidence that, if not contradicted, would have been barely sufficient to support his contention that during the time he was in possession of his land lot the immediate predecessor in title of the defendant acquiesced in the fence as the dividing line for a period of seven years. However, the defendant introduced evidence on the issue that was in direct conflict with that of the plaintiff, which fully authorized the finding that there was no such recognition or acquiescence on the part of the defendant's predecessor in title.
The defendant contended and introduced evidence that the line followed the original line dividing the lots of the land district in which both parties' lots were situated. He adduced ample evidence to support his contention.
By way of cross action the defendant alleged the plaintiff had willfully trespassed upon his lot and destroyed a fence he erected on his side of the dividing line. He claimed general and special damages. The jury awarded him the sum of $200. The value of the fence or the costs of replacing it were not proved nor was there any evidence upon which exact computation of special damages could be based. The evidence failed to prove the defendant's right to special damages. Miller v. Luckey, 132 Ga. 581, 583 ( 64 S.E. 658); Edelson v. Hendon, 77 Ga. App. 395 ( 48 S.E.2d 705); Morgan v. Black, 86 Ga. App. 775 ( 72 S.E.2d 558).
However, as held in Swift v. Broyles, 115 Ga. 885, 887 ( 42 S.E. 277, 58 LRA 390), general damages may be awarded where there is a trespass upon the property of another which interferes with the owner's peaceful enjoyment of his use of the premises. There is no fixed standard for the determination of the amount of general damages and proof from which the exact computation can be arrived at is not required. Evidence may be submitted from which the jury may fairly estimate the amount of general damages that will reasonably compensate for the wrong done. Moss Co. v. Ga. R. Bkg. Co., 144 Ga. 173, 174 ( 86 S.E. 550).
Where it is contended the amount of general damages awarded is excessive, the question may be raised by a special ground of motion for new trial, which was not done in this case.
The verdict finding for the defendant and awarding him damages was supported by the evidence.
Judgment affirmed. All the Justices concur.