Opinion
32954.
DECIDED JULY 7, 1950. REHEARING DENIED JULY 20, 1950.
Processioning; from Fulton Superior Court — Judge Andrews. September 30, 1949.
J. V. Poole, J. C. Bell, for plaintiff.
Thomas G. Lewis, for defendant.
1. Parol evidence on the question of the location of a boundary line on the trial of a protest to the findings of processioners is not inadmissible on the ground that it attempts to vary the description in a deed, the duty of the processioners being, not to locate boundary lines as they originally ought to have been laid out according to muniments of title, but to fix and determine them as they actually exist.
2. Special grounds 2, 3, 4, and 5 of the motion for new trial, containing quotations of testimony of the defendant's witnesses but without any assignment of error thereon, present nothing for decision by this court.
( a) The fact that in a later ground reference is made generally to this testimony and objections stated will not cure the defect as every ground must be complete within itself.
3. Testimony of one of the processioners as to how they made their measurements and established an existing western boundary line of the defendant's acre of land was not subject to the objection that he was incompetent to testify in that respect, could not sustain his own return upon the trial of a protest, and that the terms of the defendant's deed could not be changed by oral testimony, since there was no ambiguity therein, the inquiry in processioning being, not how the line should have been laid out according to a muniment of title, but as to its actual existence.
4. Special grounds 7 and 8 of the motion for new trial, complaining of the refusal of the trial court to rule out testimony, but not setting out in the grounds what the testimony was, and thus being incomplete within themselves, present nothing for decision.
5. The charge of the court, quoting the provisions of the Code, § 85-1601 that "Natural landmarks, being less liable to change, and not capable of counterfeit, shall be the most conclusive evidence; ancient or genuine landmarks, such as corner station or marked trees, shall control the courses and distances called for by the survey," was not subject to the objection that it was unsupported by any evidence.
6. The charge of the court, quoting the provisions of the Code, § 85-1602, that "General reputation in the neighborhood shall be evidence as to ancient landmarks of more than 30 years' standing; and acquiescence for seven years, by acts or declarations of adjoining landowners, shall establish a dividing line," was not subject to the objection that it was not authorized by any evidence and that the defendant could not prescribe against his own deed, boundary and not prescription being involved in a processioning case.
7. The charge of the court in the language of the Code, § 38-313, that "Traditionary evidence as to ancient boundaries and landmarks shall be admissible in evidence, the weight to be determined by the jury according to the source whence it comes," was not subject to the objection that it was without evidence to support it.
8. The charge of the court that "Actual possession of land as defined by the law is evidenced by enclosure, 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. In every such possession to be respected by the processioners and the lines so marked as not to interfere with it, such possession should be actual at the time the processioning is had and must have been under a claim of right for more than seven years," was not subject to the objection that it was without evidence to support it.
9. The evidence authorized the verdict in favor of the defendant.
DECIDED JULY 7, 1950. REHEARING DENIED JULY 20, 1950.
Processioners made a return, accompanied by a surveyor's plat, of an acre of land occupied by Ben E. Hill. C. E. Ledford owned a described tract of land immediately east of Hill's acre, the eastern line of Hill's acre being the western line of Ledford's tract. Ledford filed a protest which as amended contended that Hill had disregarded the description in his own deed and the protestant's deed and had extended the length of his south line so as to appropriate 34.2 feet of the protestant's land. The controversy arose as to a strip of land on the east side of Hill's acre on which was located a well. If the west line of Hill's acre is as contended by Ledford, the well would be on Ledford's acre, and if the west line is as found by the processioners the well is on Hill's acre. According to Hill's contentions, the beginning of his north line is 47.6 feet east of what Ledford claims to be the western boundary, and the south line begins at a point which is 34.2 feet east of what Ledford claims to be the western boundary of Hill's acre. The plat of the surveyor showed such north and south points of beginning to be as claimed by Hill. The following statement of the evidence is sufficient for a proper consideration of the jury's verdict in favor of the defendant Hill.
James A. Dodson was formerly the owner of a tract of land which included the acre of Hill. In 1912 he conveyed a part of his land, including this acre, to W. A. Smith. On February 2, 1933, Smith conveyed to Hubert Dodson one acre of the land which had been conveyed to him by James A. Dodson, the description in the deed being as follows: "Commencing on the north side of Red Mill Road at the point where the original west line of said land lot intersects said road, the same being the dividing line between the property of W. A. Smith and Moses Scarbrough and running thence north along said west line seventy (70) yards to a corner; thence east parallel with the Red Mill Road seventy (70) yards to a corner; then south parallel with Scarbrough line a distance of seventy (70) yards to Red Mill Road; thence west along the north side of said road seventy (70) yards to a point of beginning, containing one acre (1) acre, more or less. Said acre is bounded on north and east by the lands of W. A. Smith; on the south by Red Mill Road, and on the west by lands of Moses Scarbrough, and is a part of the land conveyed by James A. Dodson to W. A. Smith on December 30, 1912, as shown by deed recorded in Deed Book `A,' page 536 of the land records of Campbell County." On December 21, 1936, Hubert Dodson conveyed the same land by identical description to S. A. Coleman and Mrs. S. A. Coleman. On May 24, 1944, the grantees in that deed conveyed the property by identical description to Ben E. Hill and Mrs. Mary Anne Hill. The protestant, C. E. Ledford, holds deed, dated May 24, 1946, from Homer R. Norton and Gollie Norton conveying property described as follows: "Beginning 70 yards east of the west original line of No. land lot 135 [treated as 122 on the trial]; thence running east more or less to O. R. Ledford's lot bought from Homer R. Norton and Gollie Norton; thence north, more or less, to the south line of O. R. Ledford's property; thence west to the northeast corner of the Ben H. Hill and Mary Ann Hill." On February 5, 1946, Homer R. Norton and Mrs. Gollie Norton conveyed to O. R. Ledford land which is described as follows: "Along property of H. R. and Mrs. Gollie Norton to iron pin at root of big oak tree on original north and south land line; thence south two hundred and twenty-eight feet, along the original land line of land lot No. 122 to the acre sold fronting Red Mill Road, thence easterly along acre line 70 yards to iron pin, the northeast corner of said acre; thence easterly," etc. Also in evidence was a deed, dated September 10, 1938, from Homer R. Norton and Gollie Norton to [the record does not show], conveying the following described property: "Commencing at the northwest corner of land lot No. 122, this being the southwest corner of land lot 135, and running south along the west line of said land lot No. 122 to the acre sold fronting Red Mill Road; then easterly along acre line, thence south to center of road."
The plat which was introduced in evidence showed a west line running north and south 210 feet, intersecting the road on the south, but on the north line a point was indicated at an old turnrow 47.6 feet east of the said line, and on the south line was indicated a stump at a distance of 34.2 feet east of the said line. These points were fixed, according to the testimony of the surveyor Watts, at the direction of the processioners, and between them the processioners found the west line of Hill's acre to run.
H. E. Watts, the surveyor, testified on the trial of the case in part as follows. "The point which you point out on the plat is an old stump that is 34.2 feet from the land lot line. What you now point out is an old turnrow. . . That is 47.6 feet from the original land lot line. Those points were measured off by the direction of the processioners. . . This indicates an old turnrow, and the processioners directed me to draw this line along here, or rather to show those points on the plat. Somebody has cultivated up to this line (indicating). It is impossible to tell exactly when this line was established, but it has been established a good many years. . . When I speak of the original line I mean the land lot line, not the property line. . . This plat was made in 1947, during May. . . This plat shows the boundary line between these two parties as established by the processioners."
Hubert Dodson testified: "I bought the acre from Mr. W. A. Smith in 1933. When I bought it, there was a consideration of a well on that property. It was on the acre of land that I bought. I think it was 18 feet from the east line. I have seen the well and land that Mr. Hill had bought. The well and the line east of the well are just like they were when I owned it. The well is now and was on that acre. I was present when that acre was measured off. . . There was a iron pin at the north corner, and running from there back west I bought the lot, and the lot was measured off 70 yards up Red Mill Road, then back north 70 yards, then we came back down to Red Mill Road and went back out 70 yards, and then north 70 yards at the corner pin. Myself and my father, Mr. Jim Dodson, and Mr. Smith were present when that was done. Mr. Smith is dead. My father is an invalid and can not be in court. . . I have understood all my life that the line which you indicate was the line that was established by Mr. Smith. I am 41 years old. . . My land joined Mr. Scarbrough's land. They were cultivating on this land and also on this lot right to here (indicating). . . As to whether there were any corner marks on this property that I bought — I put four stobs on it, 70 yards on each line. I came back out to the old Ridge Road and put up a stob, and went over east and put up a stob. They were little iron pins. Some of them might have been pipes."
Cleve McClure testified: "The court appointed us as processioners in 1947 to go over there and see if we could settle this dispute over this land. . . We started at the old oak stump on the road and up the road east 70 yards, and then went on around there to an iron stob. Then we went north the same distance to an iron pin. Then we went west from there 70 yards to the turnrow, and the hedgerow starts in below there. This here (indicating) is the line we ran to along here. There is a turnrow all along here, and down through here the hedgerow. This original line goes on down through here in this direction and comes back up here. . . We went from the stump to the hedgerow. No, we went to the stump from this iron pin. The pins were already there. . . I do not know how long the pins had been there. We started along here at this stump, and went an acre down here to an iron stob, and we went back over here to another iron stob, a distance of 70 yards, and went back 70 yards to the hedgerow, and come back up to the stump. . . As to how we came to start at this point, the original line is claimed to be. It is there for anybody to see. You can look at it and tell it is there, and you can not move an original line. . . As to whether that original line is 34.2 feet east of the original land lot line which was run by the surveyor — I don't know nothing about that. We didn't fool with that supposed-to-be line. We read the deed, but I can not say just what the deed says. If the deed said starting on the original land line, I would start at the stump, because as I see it that is the original land line. . . I noticed there was a well on Mr. Hill's land, the way we laid it off."
J. A. Dodson testified: "I am 76 years old. I have lived in the community around Red Mill Road ever since I was 13 years old. I know about that acre that this lawsuit is about. I once owned it as part of a tract of 180 acres. I bought that particular acre from the Duncan estate, and I have known where the recognized line between that particular acre and Mr. Scarbrough's is for, I guess, 60 years. To make the corner of Mr. Hill's land there was a post oak tree when it was laid off, and ever since I knowed it for 60 years the oak tree has been the recognized line. I sold it to Mr. Smith about 1913. I sold him the entire tract, and he cut the acre off and sold it to Hubert Dodson. Mr. Smith and I were present when the acre was cut off. . . As to why we decided to start at the tree — that is where Hubert Dodson wanted it at. There was a turnrow between me and Mr. Duncan, who owned west of me. I owned all the land that the Nortons and the Ledfords afterwards owned. . . I have known that line along there for over 60 years. There wasn't no other line there, only that. . . As to whether that line has been recognized along that hedgerow from that stump back north for over 60 years — I never heard tell of no other line since I knew the place, and I owned it myself. Mr. Smith and I and all of us agreed that the land began at the tree. . . It has been some ten or twelve years since these parties and I measured off the acre, maybe a little longer. . . There is a sort of terrace between me and Mr. Duncan, and he plowed to the hedge on his side and I plowed up to my side. . . Duncan owned the land right west of me. As to whether he owned up to the original land lot — he owned to the line I am speaking of. His land and mine lined up right side by side together. That tree was right about on the line. We all went by the tree. . . The original land line crossed the road just about at that tree, and he [W. A. Smith] sold the lot down to Mr. Duncan's, who owned the land at that time. Mr. Scarbrough owned the land after that, but not at that time. We did not trespass on each other's land. We just cultivated up to that terrace. As to whether that was the way we measured off the lot — Hubert Dodson wanted an acre of land to build his house on and he bought if from Mr. Smith. He wanted the well as much as anything else. . . He said he would not have the land unless he got the well, and when we measured it off it was on Hubert's side something like 15 feet, I would say. As to whether that is an old well — I knowed the place there since 1886, and it was a well there then and a house at the well."
Mrs. Gollie Norton testified: "I live just east of Mr. Hill and Mr. Ledford. Up to about 4 or 5 years ago I owned the land that Mr. O. R. Ledford and Mr. C. E. Ledford both own. I sold the land that Mr. C. E. Ledford owns on Red Mill Road next to that well. I know the acre that is in question here, and the land that I owned it joined it on the east side. . . . When I bought the land I owned up to the iron pin on Coweta Road and ran back 70 yards. That is the east boundary of Mr. Hill's land. . . When I bought that land the iron pin on Coweta Road and on the east boundary of Mr. Hill's acre were there just like they are now. [Coweta Road formerly Red Mill Road.] The question of the well was not brought up when I sold the land, but I told him afterwards that the well wasn't there, and that that was why Mr. Hill bought that acre and gave as much as he did for it. After Mr. Ledford bought his land he asked me about the well and I told him that we never owned the well or any part of it. . . I know the boundary line between Mr. C. E. Ledford and Mr. Hill. It is marked by an iron pin, and then back here it had an iron pin there, too. The iron pin was there before I sold it to Mr. Ledford . . and Mr. Ledford knows all about it."
Ben E. Hill testified: "At that time [when he bought the acre] I located and saw the iron pins on Red Mill Road or Coweta Road, which is the same road. At the time I bought the property and before I bought it I located and knew where those corner pins were. Those iron pins are now at the same places they were when I bought the land. I found it necessary to go into court and file an injunction in order to secure peace for me and my family in the enjoyment of my home and my land. I have been in the peaceable and undisputed and constant possession of that acre, going to the line 10 or 12 feet above the well, during these five years. . . I know that the iron stob east of the well is still there where it was when I bought the acre, and I bought the acre on account of the well. We had to start up here at this stump to make it come out. That is where Mr. Coleman told me it was. There was at that time and now an indication of the old line from that stump. Mr. Coleman told me that that sign of the old line was a ridge row, and that going down there through there into the woods that is directly in line with the stump. If the east line were moved back west some 34 feet or 18 1/2 feet west of the well, it would come back in two feet of the back part of my house and run right through the barn. . . The tree was there [at the southwest corner] at the time the acre was laid off, and that is where they started from to lay off the acre. . . That tree was not still there when the processioners were out there. They said it was a stump from an old oak tree. At the time I bought my land Mr. Scarbrough owned the land right west of my lot. He told me that he owned up to this pine tree that was right on the line. That tree is rotten and fell down. . . I could not tell you when I built my barn, but I built it after I bought the acre."
C. E. Stevens testified: "I was one of the three gentlemen who were appointed by the court to act as processioners and determine the location of the lines of this acre of Mr. Hill's. . . We started at the stump where they said was the old original line. Mr. Dodson told us it had always been counted the original line, and that is where we measured from. We measured from there to where Mr. Dodson said he drove the pin at, and I am satisfied he did it because the pins showed they had been driven up a long time. We then went back north to another pin under some trees, and it had moss on it. Then we went back due west to another small pin that just did show. Then we came back to the stump from there on the old ridge row that had been a turnrow. . . Nobody tried to influence us in making our findings in determining that line. . . When we went around the acre we found it to be approximately 70 yards on each side. . . As to whether we established this (indicating) as the west line on the lot — it had already been the line all the time. We relocated it by finding a pin drove down. . . There was no pin at the stump, but there were three pins around that acre of land."
There was testimony by the plaintiff and others in his behalf in contradiction of some of the testimony offered for the defendant Hill.
The jury returned a verdict in favor of the defendant Hill. The plaintiff Ledford filed a motion for new trial on the general grounds, and by amendment added several special grounds. The court overruled the motion, and the exception here is to that judgment.
1. Special ground 1 of the motion for new trial complains that the court erred in admitting in evidence certain testimony of one of the witnesses for the defendant, as follows: "The paper you hand me conveyed to me an acre of land. I bought the acre from W. A. Smith in 1933. When I bought it, there was a consideration of a well on that property. It was on the acre of land that I bought. I think it was 18 feet from the east line. I have seen the well and land that Mr. Hill has bought. The well and the line east of the well are just like they were when I owned it. The well is now and was on that acre. I was present when that acre was measured off. . . There was a iron pin at the north corner, and running from there back west I bought the lot, and the lot was measured off 70 yards up Red Mill Road, then back north 70 yards. Then we came back down to Red Mill Road and west back out 70 yards, and then north 70 yards to the corner pin. Myself and my father, Mr. Jim Dodson, and Mr. Smith were present when that was done." It was contended that such oral testimony "can not be legally admitted to disprove or change the beginning point or the west boundary of Hill's own acre, contrary to that plainly and unambiguously set out in the deed." The oral testimony here was obviously not offered for the purpose of changing the description in the deed which had been executed to Hill, and was admissible on the question of the location of the boundary between the coterminous landowners. "The duty of processioners in fixing and marking anew established lines is not to locate them as they originally ought to have been laid out, but only to fix and determine the boundaries as they actually exist ( Boyce v. Cook, 140 Ga. 360, 78 S.E. 1057; Langley v. Woodruff, 144 Ga. 702, 87 S.E. 1054), keeping in view the rules governing in disputed lines as prescribed by section 3820 of the Civil Code (1910) [which states rules to be observed, as well as the provision of law that `Where actual possession has been had, under a claim of right, for more than seven years, such claim shall be respected, and the lines so marked as not to interfere with such possession,' Civil Code (1910), § 3822 [Code of 1933, § 85-1603.] It is not the function of processioners to ascertain and fix new lines; their duty is only to run and mark anew those which can be taken as having been formerly located and established. [Citing.] Thus, muniments of title accompanied by diagrams or plats which might on paper sufficiently describe and designate the lines and boundaries of realty so as to render their ascertainment certain will not of themselves afford the proper basis for the services of processioners. But even though the course and extent of the line itself may not have been actually marked out upon the earth's surface, yet, if there should exist a sufficient number of physically established corners or landmarks, the mere connecting of which by straight lines, or from which the projecting of the courses and distances shown by the plat would suffice to complete the boundary, it would be the duty of processioners, in accordance with the provisions of section 3820 of the Civil Code (1910), so to ascertain, mark and establish the same, respecting always the rights had under actual possession as defined by section 3822 of the Civil Code." Cosby v. Reid, 21 Ga. App. 604 (1) ( 94 S.E. 824). See also Bowen v. Jackson, 101 Ga. 817 ( 29 S.E. 40); Boyce v. Cook, 140 Ga. 360 ( 78 S.E. 1057); Byrd v. McLucas, 194 Ga. 40, 42 ( 20 S.E.2d 597); Aderhold v. Lambert, 67 Ga. App. 166, 169 ( 19 S.E.2d, 538). Thus it is seen that muniments of title describing a boundary line do not necessarily control in a processioning case, and that oral testimony is competent on the question of location of the boundary line as it really exists. This ground is without merit.
2. Grounds 2, 3, 4, and 5 of the motion for new trial merely quote testimony of certain witnesses but do not assign any error. Consequently nothing is presented for decision by this court. The fact that in a later ground reference was made generally to this testimony and objections stated will not cure the defect. Every ground must be complete in itself. Bowen v. Smith-Hall Grocery Co., 146 Ga. 157 (4) ( 91 S.E. 32); Dye v. Dotson, 201 Ga. 1, 6 ( 39 S.E.2d 8); Allen v. Bone, 202 Ga. 349, 352 (3) (supra).
3. Special ground 6 of the motion quotes certain testimony of one of the processioners which in substance states how the processioners made their measurements and established the existing boundary line after being informed as to what was the original west line of Hill's acre. It is contended that: (a) a processioner is not a competent person to testify as to how and why he and the other processioners arrived at their judgment; (b) he can not by his testimony impeach or sustain his own return upon the trial of a protest; (c) and the terms of Hill's deed can not be changed by oral testimony, there being no ambiguity therein. The witness's testimony did not impeach his return, and it was proper for him to state how he and the other processioners reached their findings. We know of no law to the contrary, and movant cites none. The testimony was admissible, not as changing the description in Hill's deed, as hereinbefore explained, but as showing the location of the boundary line as determined by the processioners. As to admissibility of such testimony respecting the processioning, see Gunn v. Harris, 88 Ga. 439 ( 14 S.E. 593).
4. Special grounds 7 and 8 complain of the refusal of the court to rule out testimony quoted by movant in the foregoing grounds of the motion for new trial, it being contended that the testimony changed or varied the terms of Hill's deed. These grounds are incomplete and can not be considered for reasons already stated.
5. Special grounds 9 complains that the court erred in charging the jury as follows: "Natural landmarks, being less liable to change and not capable of counterfeit, shall be the most conclusive evidence. Ancient or genuine landmarks, such as corner station or marked trees, shall control the courses and distances called for by the survey." It is contended that there was no evidence authorizing the charge, and that Hill is estopped by the description in his deed from claiming that the starting point is otherwise than as therein shown. Enough has been said hereinbefore to demonstrate that Hill is not estopped from asserting that the boundary line is as claimed by him. Nor is the contention that there was no evidence to authorize the charge on landmarks meritorious. It was shown that the south line started at a stump of what had been an old oak tree 34.2 feet east of what the plaintiff contends is the west line of Hill's acre according to his deed. This remaining stump constitutes such a landmark as was referred to in the charge, and the ground is without merit. Code, § 85-1601.
6. Special ground 10 complains that the court erred in charging the jury as follows: "General reputation in the neighborhood shall be evidence as to ancient landmarks of more than thirty years' standing; and acquiescence for seven years, by acts or declarations of adjoining landowners, shall establish a dividing line." It is contended that the charge as to acquiescence was not authorized by any evidence and that Hill could not prescribe against his deed. Whether or not there was any evidence showing acquiescence between adjoining landowners on the east side of Hill's acre, there was testimony by J. A. Dodson which showed that the western boundary had been established by acquiescence. He testified that one Duncan then owned the land on the left of the acre now owned by Hill. Hill's acre was a part of land which Dodson sold to W. A. Smith on December 30, 1912. On February 2, 1933, Smith cut off this acre and sold it to Hubert Dodson, and he, on December 31, 1936, sold the acre to Mr. and Mrs. S. A. Coleman, who, on May 24, 1944, sold it to Ben E. Hill and Mary Anne Hill. During the ownership of J. A. Dodson, which was for 20 years or more before he sold to W. A. Smith, he cultivated the land which he bought from the Duncan estate. According to his testimony, the western boundary of Hill's acre is just as it was then and for sixty years, and along it ran a hedge, and he plowed to the hedge on his side and a Duncan plowed to the hedge on his side. Just as grantees are bound by acquiescence of their grantors, near or remote, they also get the benefit of it. Hence, Hill, the defendant here, may properly assert that between his remote grantor, J. A. Dodson, and another the western boundary was fixed by acquiescence as he claims the line to be, although no predecessor of the Protestant here was a party thereto, and although no title is adjudicated as between the present parties. The court did not err in charging the provisions of the Code, § 85-1602. The objection that Hill could not prescribe against his deed is, of course, not well taken, since prescription is not involved in a processioning case.
7. The 11th special ground of the motion for new trial complains that the court erred in charging the jury as follows: "Traditionary evidence as to ancient boundaries and landmarks shall be admissible in evidence, the weight to be determined by the jury according to the source whence it comes." There was abundant traditionary evidence from the witness J. A. Dodson as to the location of the western boundary of Hill's acre, and the objection that there was none is without merit. Such evidence may be resorted to in order to establish a boundary line. Roberts v. Ivey, 63 Ga. 622; McAfee v. Newberry, 144 Ga. 473 (1) ( 87 S.E. 392); Moore v. McAfee, 151 Ga. 270 (5) ( 106 S.E. 274); Deaton v. Swanson, 196 Ga. 833, 837 (3) ( 28 S.E.2d 126).
8. The 12th special ground of the motion complains of the following charge of the court: "Actual possession of land as defined by the law is evidenced by enclosure, 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. In every such possession to be respected by the processioners and the lines so marked as not to interfere with it, such possession should be actual at the time the proceeding is had and must have been under a claim of right for more than seven years." The contention that such charge was not authorized by any evidence is without merit.
9. In the present case the evidence was sufficient to authorize the jury to find from tradition or general reputation (Code, § 85-1602) and adverse actual possession for more than seven years by the defendant Hill and his predecessors in title under a claim of right (Code, § 85-1603) that the eastern and western boundaries of his acre of land were as claimed by him and shown on the plat of the surveyor under date of May, 1947. This plat, made and marked at the direction of the processioners, was prima facie true and correct ( Allen v. Bone, 202 Ga. 349, 352, 43 S.E.2d 311), and no evidence was presented which was sufficient to overcome it as a matter of law. The court did not err in overruling the general grounds of the motion for new trial.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.