Opinion
15492.
JUNE 6, 1946.
Injunction, etc. Before Judge Porter. Chattooga Superior Court. March 22, 1946.
Graham Wright, for plaintiffs in error.
Espy, Lanham Parker, contra.
1. The evidence was sufficient to establish prescriptive title to land by written evidence of title and seven-years' adverse possession.
( a) The rule requiring continuity of possession is one of substance and not of absolute mathematical continuity, provided there is no break so as to make a severance of two possessions.
2. While the payment of taxes is not itself evidence of title, yet it is admissible as a circumstance tending to prove adverse possession.
3. The admission in evidence of the document described in the corresponding division of the opinion was not reversible error.
No. 15492. JUNE 6, 1946.
J. Earl Johnson sued J. C. Chamblee and others to enjoin the cutting of timber on a described tract of land, containing seventy-six acres, and to recover damages for timber alleged to have been cut. The jury found in favor of Johnson.
Johnson sought to establish title by prescription under color of title. He introduced two recorded deeds to separate parcels, making one single tract of seventy-six acres, executed by W. R. Chastain to J. E. Johnson in 1920; and another deed from J. E. Johnson to J. Earl Johnson, dated January 10, 1942. J. E. Johnson was the father of J. Earl Johnson. Under the general grounds of the motion for new trial, and under the first amendment thereto, it is insisted by the plaintiff in error that the evidence did not show a continuous possession which could ripen into a title by prescription.
The evidence to establish possession of the land, which was situated on a mountain, and so far as the record discloses had never been cultivated or fenced, was as follows: J. Earl Johnson testified: "My father went into possession of the property in 1920. . . The first thing he did, he took myself, brother, and mother up there . . with the expectation of putting a summer camp . . for camping parties, . . and we used the place for a summer home and for camping purposes. . . My father spent a whole year up there working on the place. . . He built two or three hundred yards of rock wall around the spring to keep the surface water from washing in the spring. The cabin up there, I built myself with the help of other young men who went there repeatedly to camp in 1928, and it took a couple of summers to get it livable. . . We have used it repeatedly since then. When I was not there, I had somebody in charge of the property. A fellow lived next door named Thack Hardwick, but he is dead now. . . He and his family wrote me at different times when there was developments up there. After he passed on, his two daughters still lived there on the place and they looked after it for me. . . This property is located . . about two miles from the main road across the mountain. I used it almost continuously except for the time I moved away and went in the Army. After [Mrs. Hardwick's daughters] moved away Mr. Stokes had it in charge for me. He was on the east side of the property. I rented it to Mr. Herb Holbrook. He lived there about a year. During all that time . . no one else ever sought to exercise control over this property or questioned my possession. I was discharged from the Army in 1943, and until November, 1944, I was in the enlisted reserve, working for the Navy in civilian service. I cut the timber to build the cabin. Mr. Chamblee some years ago tried to buy that timber from me. . . He tried to buy it three years ago, and I refused to sell it to him."
Upon cross-examination, the witness testified: "My age is 42. The house was built in 1928. It was a log cabin. We had tables and bunks built into it. . . Somebody broke the lock . . and removed them. . . That was in 1936 and 1937. Mr. Holbrook had a stove in there about 1935 or 1936. We occupied the house in 1930. That was when we first occupied the cabin, but we were there for camping purposes repeatedly. I won't say it was occupied every year after that, . . but it was occupied after 1930 up to 1936. We went up there two or three times during the summer. . . Sometimes we stayed a week, . . and sometimes just for the week end. That continued until Mr. Holbrook rented it in 1936. I was there after that time. I don't think I was there every year from 1936 until 1939. . . I don't think I stayed any longer than a week end during 1939 and 1940. The Hardwicks looked after the property for me from 1920 or 1921 and kept us notified as to the happenings. I rented the place in 1936. About 1935 or 1936 Mr. Hardwick died and so did Mrs. Hardwick, and the girls looked after the place for a while, and then Mr. Stokes looked after it about 1939 or 1940. When I say looked after the property I mean . . keep an eye on the tract and to keep me informed as to conditions. For instance, there was some forest rangers wanted to cut a road through the place for fire prevention and I was notified . . by the man who was looking after it, and I gave my permission for them to go through. I mean keeping an eye on it and let me know if anybody went in there to cut timber. Mr. Stokes repaired the roof of the house and I paid him for it. I paid Mr. Stokes to repair the roof twice. The last time was about two years ago, before that — must have been four or five years previous. The house is not practically dilapidated, you could live in it — it is habitable. No furniture of any kind in it — something like nine or ten years since any furniture has been in there."
Mrs. J. B. Persley testified: "My father was Mr. Hardwick. We all looked after this property for Mr. Johnson after my father's death. It was known as the Johnson property. . . I left the mountains in 1935. My sisters lived out there until about three years ago. . . I said something a moment ago about looking after the property. As to what I meant by that — we usually saw about it, and in the spring time we would burn off around the cabin and see that no fires were set."
Joe Murphy testified: "I know what part of it was Mr. Johnson's property. I know that they have been coming up there for a number of years and have made it their summer home."
W. H. Stokes testified: "I join lands with him [Johnson]. I looked after this place for Mr. Johnson and his father for a number of years. I began looking after the property something like three years ago. He paid for looking after the property for him twelve dollars a year for three years. And he paid for doing the work on the cabin. And I covered it once for him. One time when Holbrook lived there I sealed it on the inside. . . I began to look after it about 1942. . . That place is not in bad repair now. . . I mean the roof is in good shape. . . It has been about three years since Mr. Johnson has been up there. And before that he would just come in and stay a week or two. . . I was to watch after the land and see that nobody encroached on it, and report if any timber was cut. I did report to Mr. Johnson when this timber was cut. . . To look after it, I just noticed to see that nobody trespassed on it. I went over there most every day. I mean I merely walked across the property."
Herb Holbrook testified: "I lived out on the mountain near what is known as the Johnson property. . . I did occupy the cabin on the property . . in 1936. I looked after the renting of the cabin. . . When I left there, it was in 1937. He came there every summer — the elder Mr. Johnson. The young man came there every summer for something like a week or two at the time. I have been living up there all the time. But I could not say whether or not they came there every summer."
Tom Key testified: "I am familiar with this property up there on the mountain known as the Johnson property. I occupied that cabin up there. I stayed there about three weeks in 1938. I rented it from Mr. Stokes. . . He was in charge of it for Mr. Johnson."
Johnson produced tax receipts for each year from 1922 to 1944 inclusive, except the year 1923, and testified that he and his father owned no other property in the county, and that the tax receipts were for the property in question. Several witnesses testified that the property was known as the Johnson property.
1. Johnson's right to a recovery must stand or fall upon whether or not he had acquired prescriptive title to the land by written evidence of title and seven years adverse possession, as provided in the Code, § 85-407. Written evidence of title was supplied by the introduction of deeds to the land into his father and by a deed from his father to him.
"Actual possession of lands is evidenced by inclosure, cultivation, or any use and occupation thereof which is so notorious as to attract the attention of every adverse claimant, and so exclusive as to prevent actual occupation by another." Code, § 85-403. In the instant case, there was no evidence of inclosure or cultivation, so the question presented is whether the evidence was sufficient to establish possession by "any use and occupation thereof which is so notorious as to attract the attention of every adverse claimant, and so exclusive as to prevent actual occupation by another." This becomes a question of fact for the jury. Flannery v. Hightower, 97 Ga. 592 (3) 606 ( 25 S.E. 371). "The rule requiring continuity of possession is one of substance and not of absolute mathematical continuity, provided there is no break so as to make a severance of two possessions." Walker v. Steffes, 139 Ga. 520 (9) ( 77 S.E. 580); Anneberg v. Kurtz, 197 Ga. 188 ( 28 S.E.2d 769, 152 A.L.R. 338). Applying the foregoing rules of law to the facts, there was sufficient evidence to authorize the jury to find that, during the time required for the ripening of prescription, Johnson did such acts and held out such signs to indicate adverse possession. The instant case is distinguishable upon its facts from McCook v. Crawford, 114 Ga. 337 (2) ( 40 S.E. 225), and Clark v. White, 120 Ga. 957 (2) ( 48 S.E. 357).
2. The court charged as follows: "The court has permitted to go to you in the trial of this case certain evidence. The plaintiff has offered certain tax receipts, which, he contends, were issued to him and his father for the years shown by the receipts. I charge you that the court permitted these receipts to be offered in evidence, not as evidence of title to the property, for I charge you now that the payment of taxes is not itself evidence of title to the property, but it was permitted to go to you, for your consideration, giving it such consideration as you think it entitled to receive, only as a circumstance to show possession, if it does, and you have the right to consider that in determining the extent of possession of the plaintiff, if it shows or illustrates anything on that question."
Exceptions thereto allege error, "for the reason that payment of taxes is not possession or evidence of possession, and the court having instructed the jury that they could consider the payment of taxes in determining the extent of the possession of plaintiff, the same was contrary to law and highly prejudicial."
The exception is not meritorious. While the payment of taxes is not itself evidence of title ( Scott v. Cain, 90 Ga. 34, 15 S.E. 816), yet it is admissible as a circumstance tending to prove adverse possession. Mitchell v. Crummey, 134 Ga. 383 (5) ( 67 S.E. 1042); Causey v. White, 143 Ga. 7 (9) ( 84 S.E. 58); Crider v. Woodward, 162 Ga. 743 (11) ( 135 S.E. 95). Substantially the same charge was approved in Mitchell v. Gunter, 170 Ga. 135 ( 152 S.E. 466).
3. By the third ground of the amended motion exception is taken to the introduction in evidence of an amendment to the petition which contained various data as to deeds conveying the land in question, and referred to in the amendment as an abstract of title. This document set forth memoranda of many recorded deeds transferring the land in question, including the deeds upon which Johnson predicated his title, and also deeds in which Chamblee, the defendant in the lower court, and his predecessors in title were grantees. The document appears to set forth all deeds conveying the land in dispute which have been recorded; but it does not set forth a connected chain of title in either of the parties to the suit.
Inasmuch as the document was part of the petition and would have gone out with the jury anyway, and it showed defects in Johnson's recorded title, and data tending to support Chamblee's title, as the deeds relied upon by Johnson to show his written title were separately introduced, as there was no evidence in behalf of Johnson seeking to establish title except such as to show adverse possession under these deeds — therefore we fail to see how the admission of this evidence was so injurious as to amount to reversible error.
Judgment affirmed. All the Justices concur.