Opinion
16715.
SEPTEMBER 16, 1949. REHEARING DENIED OCTOBER 13, 1949.
Complaint for land. Before Judge Thomas. Brantley Superior Court. April 30, 1949.
Memory Memory, for plaintiff.
Blalock Blalock, for defendant.
1. Acquiescence for seven years, by acts or declarations of owners of adjoining land, will establish an unascertained boundary line.
2. Where evidence is admissible for any purpose, its admission will not cause a new trial.
3. Where the verdict is demanded by the evidence, it will not be reversed by this court on the ground of an erroneous charge or failure to charge.
4. The fact that one of the jurors who tried the case was related to one of the parties within the prohibited degrees will not require a reversal of a judgment overruling a motion for new trial, where the verdict was demanded by the evidence.
No. 16715. SEPTEMBER 16, 1949. REHEARING DENIED OCTOBER 13, 1949.
W. H. Hickox filed an action in ejectment against F. H. Griffin, and a similar action against H. F. Lee, to eject the defendants from a strip of land claimed by the plaintiff. The land in dispute lies on the west side of the property owned by the plaintiff, and on the east side of the property owned by the defendants, the property of Lee being south of the lands of Griffin. By amendment the plaintiff prayed for damages for timber cut by the defendant Griffin from the land claimed by the plaintiff. The actions were consolidated and tried as one case.
P. D. Griffin, the father of F. H. Griffin, was formerly the owner of the tract of land now divided between Hickox, Griffin, and Lee. On June 1, 1909, P. D. Griffin executed to F. H. Griffin a deed to the land now owned by both defendants. In that deed the boundary in controversy is described as follows: "Commencing at Dick's Branch 130 yards above the ford and from thence north to spring head." It is the location of the starting point, and the line north to the spring head, which forms the basis of the dispute.
P. D. Griffin, the common grantor, died in 1923. An administrator's deed was made on December 3, 1946, to C. O. Brackin, conveying the eastern portion of the original lands owned by P. D. Griffin. Brackin executed a deed to the plaintiff. These deeds describe the land as "bounded on the west by the lands of Floyd Lee and lands of Harvey Griffin."
The evidence developed that in 1897, P. D. Griffin told his son, F. H. Griffin, that he was giving him a 60-acre tract of land. At that time there was no attempt to mark off the east line of the property, but the defendant moved on the land, built a house, and made other improvements. Shortly prior to 1909, the defendant and his father decided to locate a line between their properties. The evidence shows that they did this by going down to the "ford" at the edge of the swamp, and that the grantor, being unable to get through the swamp because of its impenetrable character and his age and weakness, stepped off 130 yards "above" the ford, that is, in an easterly direction and along the edge of the swamp, to a tree, which P. D. Griffin and F. H. Griffin agreed should be the starting point. They did not actually follow the line from there north to the spring head.
The plaintiff contended that the deed from P. D. Griffin to F. H. Griffin, properly interpreted, meant that the disputed line should start at a point 130 yards up the thread of the stream and following the convolutions of the channel. He testified that he had not had a survey made in accordance with his contentions, but stated that a line run from such a starting point would probably come inside a fence which the undisputed evidence shows was erected by the defendant Griffin more than 40 years previously, and might extend through the homes built by Griffin and Lee. He testified relative to a barn built on the property in dispute more than ten years previously by the defendant Griffin, and with reference to the fences built by Griffin he testified: "I am familiar with the fence that runs along the road that now fences that land belonging to Lee and Griffin. I know there have been three fences put along there. the first one was a rail fence, and then they put a new wire fence just on the outside of the rail fence. When it got old and rusty they put up a new wire fence still further out. That is the present fence, and that is the third fence. The fence was moved out a little bit each time. I expect it was moved about fifteen feet from the original fence that was there forty-two years ago. There is a marker there in Mr. Griffin's field where the old fences were. The old fence row is there. It is plowed up a little higher than the rest of it, and the old weeds are still growed up in the old fence row."
There is evidence to the effect that F. H. Griffin and his father never surveyed the east line of the property, but that they agreed upon a line. A number of witnesses testified that the agreed line between P. D. Griffin and F. H. Griffin was recognized and observed by the original parties to the agreement, by their successors in title, and by a lessee of the administrators of the estate of P. D. Griffin. The plaintiff testified: "I do know where Mr. Brackin [the plaintiff's predecessor in title] cut timber to. He cut up to a marked line. I know where that marked line is. It is perfectly plain. The timber stands on one side. I know exactly where it is. The line is marked out there."
A surveyor, D. S. Page, testified that a line run by him in 1947 was within a few feet of the line that had been established and recognized by the adjoining landowners for many years prior to the time the plaintiff purchased his land.
The jury returned a verdict for the defendants, establishing the line according to the plat made by the surveyor in April, 1947. The plaintiff moved for a new trial on the general grounds, which were later amended by adding ten special grounds. He assigns the overruling of this motion as error.
1. The plaintiff's deed does not describe his property by courses and distances, but only names the adjoining landowners, and describes his property as "bounded on the west by the lands of Floyd Lee and lands of Harvey Griffin," the defendants. The plaintiff, in order to recover the lands claimed by him, would therefore be required to show that the lands for which he sued were not "the lands" of the defendants.
Counsel for the plaintiff insist in their brief that the evidence demanded a finding for the plaintiff. This contention is not sustained by the record. The plaintiff failed to establish his contentions by a preponderance of the evidence. On the contrary, the testimony offered in his behalf shows that, if a line between the plaintiff and the defendants should be established as insisted upon by the plaintiff, he would acquire improvements, ranging in age from 10 to 40 years, made upon the land by the defendants. The plaintiff's testimony did not fix any line between his property and that of the defendants so as to sustain a verdict for him.
The uncontradicted evidence for the defendants shows that, while P. D. Griffin and his son, F. H. Griffin, never surveyed the line "commencing at Dick's Branch 130 yards above the ford and from thence north to spring head," they did by agreement and acquiescence establish a dividing line between their properties. This dividing line was recognized by the coterminous proprietors for approximately forty years prior to the time the plaintiff acquired title to his property.
"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. Gornto v. Wilson, 141 Ga. 597 (2) ( 81 S.E. 860); Hart v. Carter, 150 Ga. 289 ( 103 S.E. 457); Barfield v. Birrick, 151 Ga. 618 (2) ( 108 S.E. 43); Farr v. Woolfolk, 118 Ga. 277 (2) ( 45 S.E. 230); Osteen v. Wynn, 131 Ga. 209 (3,4) ( 62 S.E. 37, 127 Am. St. R. 212); Brown v. Hester, [ 169 Ga. 410 ( 150 S.E. 556)]." Bradley v. Shelton, 189 Ga. 696 (4) ( 7 S.E.2d 261).
The evidence demanded the verdict returned by the jury in favor of the defendants.
2. There is considerable testimony as to the existence of a prior completed gift from P. D. Griffin to his son, F. H. Griffin; and ground two of the amended motion for new trial is based upon alleged error of the trial judge in admitting such testimony, it being contended that any such agreement between the parties was merged in the written instrument, and that the evidence objected to was an attempt to vary the terms of the instrument by parol.
Conceding, but not deciding, that the alleged parol gift was merged with the written deed, and that evidence to establish a completed parol gift was inadmissible for that purpose, it is nevertheless obvious that most, if not all, of the evidence so admitted tended to establish an agreement between coterminous landowners as to where the dividing line between their property should be, and acquiescence thereafter by themselves and their successors in title as to such a line. Where the evidence is admissible for any purpose, its admission will not cause a new trial. West, v. West, 199 Ga. 378 ( 34 S.E.2d 545).
3. In grounds 1, 3, 4, 6, 7, 8, and 9, error is assigned upon charges of the court, and in ground 5 error is assigned upon a failure of the court to charge. Whether or not the court erred in charging the jury, or in failing to charge, as contended by the plaintiff, a reversal of the judgment denying the motion for new trial is not required. The verdict was demanded by the evidence, and it will not be reversed by this court on the ground of an erroneous charge or failure to charge. Park Iverson v. Piedmont Arlington Life Ins. Co., 51 Ga. 510; Willis v. Meadors, 64 Ga. 721 (4); Richardson v. Hairried, 202 Ga. 610 ( 44 S.E.2d 237).
4. Ground 10 complains of the overruling of a motion of the plaintiff's counsel, made during the course of the trial, to disqualify one of the jurors on the ground of relationship.
"The evidence demanded the verdict. Therefore the fact that one of the jurors who tried the case was related to one of the parties within the prohibited degrees will not require a new trial." Frazier v. Swain, 147 Ga. 654 (3) ( 95 S.E. 211).
The judgment of the trial court in overruling the motion for new trial was without error.
Judgment affirmed. All the Justices concur.