Opinion
21382.
SUBMITTED SEPTEMBER 12, 1961.
DECIDED OCTOBER 5, 1961.
Complaint for land. Forsyth Superior Court. Before Judge Burtz.
Brannon Brannon, A. B. Tollison, Jesse Watson, H. G. Vandiviere, for plaintiff in error.
Leon Boling, contra.
1. An unascertained or disputed boundary line between coterminous owners of land may be established either by oral agreement, if such agreement is manifested by actual possession to the line agreed upon, or by acquiescence for seven years as provided by Code § 85-1602.
2. Where the verdict rendered by the trial court was demanded by the evidence, special grounds relating to the charge of the trial court will not be considered on appeal.
SUBMITTED SEPTEMBER 12, 1961 — DECIDED OCTOBER 5, 1961.
J. C. Hethcock, plaintiff in error (plaintiff below), instituted ejectment proceedings against defendant in error, Lloyd Padgett (defendant below).
The facts giving rise to the litigation, as revealed by the undisputed evidence, show that both parties acquired title to their respective tracts from a common grantor, Mrs. Kate Roper Bramblett. In 1945 Mrs. Bramblett deeded a three-acre tract in the southwest corner of land lot 849 of the Third District of Forsyth County to the defendant, the south boundary of said tract being the land lot line separating lot 849 from its southern neighbor, lot 880. At the time of the conveyance, Mrs. Bramblett was also the owner of the land in land lot 880, now claimed by the plaintiff.
Subsequently to the conveyance, the evidence shows that the defendant, Padgett, and Mrs. Bramblett agreed upon the location of the line dividing their property, and the defendant then erected poultry houses, fences, and hog pastures north of the line agreed upon.
In 1947 Mrs. Bramblett deeded her property in land lot 880 to Mrs. Elizabeth Graham, who, in 1953, deeded it to the plaintiff, Hethcock. In 1959 the plaintiff had a survey made of the line dividing his land and that of the defendant. The survey revealed that the land lot line separating lot 849 from lot 880 was several feet north of the line agreed upon by Mrs. Bramblett and the defendant. The survey further revealed that the defendant's poultry houses and fences were several feet south of the land lot line.
The jury returned a verdict for the defendant, which was made the judgment of the court. The plaintiff made a motion for a new trial, which motion as amended was denied. To the ruling denying the motion for new trial the plaintiff now excepts.
1. "An unascertained or disputed boundary line between coterminous proprietors may be established either (1) by oral agreement, if the agreement be accompanied by actual possession to the agreed line or is otherwise executed; or (2) by acquiescence for seven years, by acts or declarations of owners of adjoining land, as provided by the Code, § 85-1602." Hickox v. Griffin, 205 Ga. 859 ( 55 S.E.2d 351).
In the case now under consideration the evidence indicates that the boundary line propounded by the defendant has been established by both of the above methods.
Counsel for the plaintiff contend that the boundary line was not unascertained or in dispute and thus was incapable of being established by either of the methods set out in the Hickox case. Their contention in this regard cannot be supported. While it is true that the boundary, which was a land lot line, was ascertainable, yet, as between the parties to the agreement, it was, prior to and at the time of the agreement, unascertained.
The factual situation here involved is not unlike that in Warwick v. Ocean Pond Fishing Club, 206 Ga. 680 ( 58 S.E.2d 383), in which the court stated: "The line is definite in so far as the words of the deed are concerned; but it had never, with the use of the deed as a guide, been located and marked upon the land itself. Despite the clarity of the deed, it remained necessary to ascertain, by measurement, the location upon the land of the dividing line, and hence it must be held that the line was uncertain and unascertained, in contemplation of the rule for the establishment of a line by acquiescence."
Thus the agreement between the defendant and Mrs. Bramblett effectively fixed the boundary line and was binding upon Mrs. Bramblett and her successors in title, in which category the plaintiff falls. See also Ivey v. Cowart, 124 Ga. 159 (4) ( 52 S.E. 436, 110 ASR 160).
The evidence adduced by the plaintiff to the effect that the defendant admitted after the survey that he "just bought up to the line" and defendant's alleged offers after the survey to buy the property or move his poultry houses, even if true, are not in conflict with and do not dispute the testimony given by the defendant and corroborated by Mrs. Bramblett, the plaintiff's predecessor in title, to the effect that they had agreed upon the location of the line and that, pursuant to such agreement, the defendant had erected poultry houses and other improvements just north of the line agreed upon. Nor is the evidence of seven years' acquiescence by all parties as to the boundary agreed upon contradicted by the plaintiff.
Furthermore, there is abundant evidence that, at the time the plaintiff purchased the property from Mrs. Bramblett, there were facts sufficient to put him on notice of the boundary line which had been agreed upon between his grantor and the defendant, e.g., the poultry houses, fences, etc.
2. The verdict rendered was demanded by the evidence. Accordingly, the special grounds in the plaintiff's motion for new trial, all of which relate to the charge of the court, need not be considered. Park Iverson v. Piedmont c. Ins. Co., 51 Ga. 510 (5); Willis v. Meadors, 64 Ga. 721 (4); Richardson v. Hairried, 202 Ga. 610 ( 44 S.E.2d 237); Hickox v. Griffin, 205 Ga. 859, supra.
Judgment affirmed. All the justices concur.