Opinion
15481.
JULY 2, 1946.
Petition for injunction. Before Judge Hawkins. Cobb Superior Court. February 23, 1946.
Schroeder Walker and George D. Anderson, for plaintiff.
Sam J. Welsch, for defendant.
1. The petitioner's suit to enjoin the defendant from trespassing upon a strip of land and also seeking damages is based upon a deed, by which it is contended that the land in question was conveyed to her, and that the deed fixes the boundary line as the city limits of the City of Marietta. The city limit is fixed by the act of 1906 (Ga. L. 1906, p. 849) at a distance of one mile from the center of the park in the public square in the City of Marietta. Upon the trial no evidence was introduced which shows that anyone ever measured the mile distance from the center of the park in the public square in the city, and, hence, the city limit as referred to in the petitioner's deed was not located and established by the petitioner. It not having been shown that the strip of land here involved was embraced in the petitioner's deed, the verdict against her was demanded as a matter of law.
2. Where the petitioner also sought to show title to the strip of land in virtue of an alleged prescriptive title acquired by twenty-years' adverse possession under the above deed, her failure to prove the location of the city limits deprived her of the benefit of constructive possession under the deed. The only evidence of the alleged adverse possession was the testimony of the petitioner in her own behalf, which was evasive, vague, and contradictory, and which when construed most strongly against her failed to prove possession sufficient under the law to ripen into a prescriptive title. Such evidence demanded a verdict against the petitioner on the issue of title by prescription.
3. The defendant's evidence was sufficient to show title in him to the land in controversy, and this evidence, being uncontradicted, demanded a verdict in favor of the defendant. The verdict being demanded under the evidence, no ruling will be made on the special grounds of the motion for new trial excepting to portions of the charge and failure to charge.
No. 15481. JULY 2, 1946.
STATEMENT OF FACTS BY DUCKWORTH, JUSTICE.
Mrs. Henry E. Castile sought injunction and damages against Luther P. Burton for alleged trespass upon the southern portion of her described land in Cobb County, Georgia, claiming title by virtue of a warranty deed and also by twenty years of adverse possession. The defendant denied that she owned such strip of land, and contended that it was included in the description of his land as expressed in his deed acquired subsequently to the date of the deed to the petitioner; each tracing title to Marietta Knitting Company, which admittedly owned the tract out of which the respective properties were derived. He also denied that her alleged possession of the strip of land in controversy was other than permissive, and sought to enjoin the petitioner from trespassing thereupon. The defendant's land lay immediately south of the land of the petitioner, and in her deed the southwest corner was fixed "at the point of intersection of the northeast side of Kennesaw Avenue with the city limits of the City of Marietta, Georgia," and the southern boundary ran northeasterly from such point along the city limits to the west side of the right of way of the W. A. Railroad at the city limits. The defendant was a remote grantee of Marietta Knitting Company, a sale of the land claimed by him having been sold by the city marshal because of non-payment of a paving assessment. The marshal's deed fixed the northwest corner as being at a point at the end of the paving on Kennesaw Avenue, with the recital, "same being known as the corporate limits of the City of Marietta;" and the deed further stated, "thence in a northeasterly direction along the line of the city limits . . to the west line of right of way of Western Atlantic Railroad." In the deed from the purchaser at such marshal's sale to the defendant's grantor and in the deed to the defendant, the northwest corner was fixed as being at the end of the paving on Kennesaw Avenue, described as the city limits of Marietta, Georgia. The location of the city limits with respect to the lands was at issue between the parties; the defendant contending that the city limits were at the end of the paving on Kennesaw Avenue; and the petitioner contending that they were at a point south of the end of such paving, the strip of land between such points and extending eastwardly being the land in dispute. On the trial of the case, witnesses for the respective parties testified to certain markers, past or existing, physical indicia, surveys and signs of the Western Atlantic Railroad marked "city limits," based on which they testified pro and con as to the city limits, by surmise or repute. Under the act of 1906 (Ga. L. 1906, p. 849), the city limits were fixed at a distance of one mile from the center of a park in the public square in the City of Marietta, but no witness testified that he had ever measured the mile distance from such starting point, and it was not shown that the surveys were based on such one-mile distance.
The petitioner testified: "I note the paper you hand to me as being a deed dated January 30, 1924. I received that paper on the day it is marked there, and I have been in possession of the property described in the deed since that time. I moved there in 1924, and so I have been there 21 years before this suit was filed. I know where that marker is there on Kennesaw Avenue. . . I don't know exactly when that marker was put there, but it has been some ten or fifteen years ago or more. From the point there along that city-limits line, as shown by Mr. Lawrence, I have been in possession of that property, and I have been in possession of that property away before I moved there. I have been using it regularly since 1924, sunning my beds, hanging out my clothes, raising my chickens, pasturing my cows, and I put up a fence there back of my house to have room to hang up my clothes. We are talking now about the disputed line, the area that is disputed in there between Mr. Burton and me. I have been in actual possession of that land for all these years up to the city limits. I wouldn't go across it until I got possession, to take care of it, from this company. That was the Pittman Construction Company. They recognized that as the line. We commenced dealing with them in 1930 and maybe further than that. . . As to what they did to show that they recognized it as the true line — well, they surveyed it, the Pittman Construction Company did, or somebody did, and I never went out there and asked them who. That was while Pittman owned it. As to whether I discussed with any agent of the Pittman Construction Company the question of where the line was — yes. There was two men there. I didn't ask them their names, but I asked them would it be all right to use the land, and he said use it all, and he says, `I am going to sell it, and how about selling it to you?' There isn't any paper about this being the true line there. They surveyed it, and I came out there, and this was the old line every time up until Mr. Burton disputes it, and it is still there. There hadn't been any dispute about it up until that time. My possession has been peaceable all these years. I never heard a word about it. I have built chicken coops on the property there, and set out trees on my property, and put a fence on it, and I washed there and sunned my beds there and everything. . . I have used that property there for any and every purpose that I wanted to for 21 years last June, and nobody has ever interfered with me until now. I have held it under my deed there, and have had no trouble at all with anybody."
The petitioner then testified as to the defendant and helpers coming on the property and tearing down her fence and saying he was going to put up a new one, their dispute as to the location of the boundary line, and certain alleged rude and frightening conduct on the part of the defendant, as well as to certain damages which she claimed to have sustained. She further testified: "As to whether or not I said I was in possession of a certain tract out there just south of me that was vacant property and as to whether that was where Burton owns and if that was vacant in there — yes, I took care of it. Pittman Construction Company owned in there, all except to my line. . . And he says, `We will just sell you this property out here,' and he tries to, but I didn't want to buy it because it was adjoining Burton, and he has offered it to me since then. This person said, `We will just sell it,' and he says, `I want you to take care of it until I do sell it.' But that ain't the property I been using all the time. That is the property above the city limits. . . And when Mr. Burton bought the property, this fence I am complaining now about his tearing down is the same fence that was the enclosure, but we put it up there, put the posts there and took care of it. As to whether or not he had been pasturing his stock in there for more than a year before this came up — well, I didn't care, just so it didn't hurt nothing. This is the same property that the Pittman Construction Company told me to look after. . . You are mistaken about his stock being in there all the time. He just put them there a little while at a time. . . The fence he tore down was the one that made it possible for him or me or anybody else to keep a cow there. That was the same fence he had used for an enclosure to keep his stock in there, and I used it, me and him both used it. He had used it a little bit but mighty little. He just put his horses and mules in there a few days at a time, just one day a week, but not from April a year ago, not very often. I have never actually measured my property from the north boundary line down to the end of the paving on Kennesaw Avenue. I didn't measure the ground there to the end of the pavement, but I just went by my deeds. As to what my deed calls for on Kennesaw Avenue — well, from the Wilder property down to the end of the paving. As to how many feet that is — it don't call it that. It just says to the end of the paving, the city line. That's what I go by. I never measured it."
The petitioner introduced in evidence a letter from Pittman Construction Company, predecessor in title to the defendant, dated February 16, 1931, reading as follows: "Replying to yours of January 30th with reference to rental of pasture in Marietta. Wish to say you can have it on the same plan as you had it last year, subject to moving out in case we should sell the property, which is hardly possible in times like this."
Several witnesses testified for the defendant that they were present with the defendant when he was having the fence torn down, as testified by the petitioner, but denied that they or he were guilty of any rude conduct towards the petitioner.
The defendant also testified that he had not been guilty of any improper conduct towards the petitioner in tearing down the fence. He also testified as to having made certain measurements purporting to establish the boundary line in question, but these measurements were not made with respect to the one-mile distance from the center of the park in the public square of the City of Marietta. He testified that at no time until the dispute about tearing down the fence did Mrs. Castile, the petitioner, ever say anything to him about his being in possession of or occupation of the strip of land in question or putting his stock in there; that she never at any time was claiming it adversely, and before he bought his property people had put cows in the pasture under a rental agreement with Pittman Construction Company.
The jury returned a verdict in favor of the defendant. The petitioner filed a motion for new trial on the usual general grounds and by amendment added several special grounds complaining of certain portions of the charge and failure to charge. The court overruled the motion for new trial, and the exception here is to that judgment.
1. The petitioner by the averments of her petition bases her claim to the strip of land in controversy, first upon the deed dated January 30, 1924, which expressly fixes the southern boundary of the land therein conveyed as the city limits of the City of Marietta, and secondly upon 20-years' adverse possession under that deed. It is at once quite obvious that, in order to be entitled to recover in virtue of her deed title, it was incumbent upon the petitioner to establish by evidence the location of the city limits of the City of Marietta at this place. Since under the law that city limit is located exactly one mile from the center of the park in the public square in the City of Marietta, Georgia, except on the east side and not here involved (Ga. L. 1906, p. 849), the direct and indeed the only way to locate the city limit would be to measure a distance of one mile and mark the terminus which would be the city limit. The petitioner made no attempt by her evidence to thus establish the city-limit line. There is no proof in this voluminous record by any witness or otherwise which shows where a mile distance from the center of the park in the public square of the City of Marietta would terminate. The absence of this vital proof was fatal to that part of the suit relying upon the deed, and on this phase of the case the evidence demanded a verdict against the petitioner.
2. But the petitioner alleges, as a further basis for her claim to the land in litigation, that she has been in continuous adverse possession thereof under the deed above dealt with for more than twenty years. If it be held that such allegation would entitle the petitioner to recover by proof of adverse possession for a period of seven years under the Code, § 85-407, and that under such averment she would also be entitled to recover upon proof of adverse possession alone for a period of twenty years under the Code, § 85-406, it would then be necessary that her proof of possession of the land involved be sufficient under the law, in order to hold that a verdict in her favor would have been authorized by the evidence. The absence of any evidence locating the city limits is fatal to any right of the petitioner to the benefit of constructive possession under the deed, as provided in the Code, § 85-404. It was incumbent upon the petitioner to make proof of actual possession of every portion of the land claimed. Toms v. Knighton, 199 Ga. 858, 864 ( 36 S.E.2d 315). Since the record shows that she relied entirely upon her own testimony for proof of adverse possession, her evidence must be subjected to the rule of law that, if it is evasive, uncertain, or contradictory, it must be construed most strongly against her, and if when thus construed it is insufficient to entitle her to recover, a verdict against her is demanded. Farmer v. Davenport, 118 Ga. 289 ( 45 S.E. 244); Atlanta Ry. Co. v. Owens, 119 Ga. 833, 835 ( 47 S.E. 213); Southern Ry. Co. v. Hobbs, 221 Ga. 428 ( 49 S.E. 294); Allen v. Allen, 198 Ga. 269 (9) ( 31 S.E.2d 483); Cooper v. Aycock, 199 Ga. 658, 667 ( 34 S.E.2d 895).
Without here repeating extensively the testimony of the petitioner as is fully set out in the statement of facts preceding this opinion, it is sufficient to point out that on page 82 of this record she testified that in 1931 she obtained permission of the defendant's predecessor in title to use the land here involved. It is further pointed out on page 84 of the record that she said: "As to what my deed calls for on Kennesaw Avenue — well, from the Wilder property down to the end of the pavement. As to how many feet that is — it don't call it that, it just says to the end of the paving, the city line. That's what I go by." While an inspection of her deed discloses that nothing is said therein about the end of the pavement, nevertheless this testimony of the petitioner shows that, since she at no time claimed land farther south than that called for by her deed, and since by this testimony she was under the impression that her deed called for land only to the end of the pavement, it is obvious that any adverse possession she had was under a claim only to the end of the pavement. That point marks the northern boundary of the strip here in controversy, and is the line described in the defendant's deed and is the dividing line as contended by the defendant. This testimony of the petitioner demanded a verdict against her on the claim of title by adverse possession.
3. The defendant's deed put in evidence contains a description embracing the land in controversy. It was not contradicted by any evidence. Accordingly, the verdict for the defendant was demanded by the evidence, and the general grounds of the motion for new trial are without merit. Since the verdict complained of was demanded, several special grounds of the motion for new trial excepting to portions of the charge and failure to charge will not be ruled upon. Peoples Savings Bank v. Smith, 114 Ga. 185 (4) ( 39 S.E. 920); Swindell v. First National Bank, 121 Ga. 714 (2) ( 49 S.E. 673); White v. Southern Ry. Co., 123 Ga. 353 (4) ( 51 S.E. 411); Elyea Incorporated v. Cenker, 184 Ga. 179, 180 ( 190 S.E. 585).
Judgment affirmed. All the Justices concur.