Opinion
20166.
ARGUED SEPTEMBER 10, 1958.
DECIDED OCTOBER 10, 1958.
Injunction. DeKalb Superior Court. Before Judge Guess. November 15, 1957.
William C. O'Kelley, for plaintiff in error.
J. Robin Harris, McCurdy, Candler Harris, contra.
The unofficial plat or survey offered in evidence by the plaintiff was not established as correct by any evidence, and it was not admissible as illustrative of the testimony of any witness.
(a) The plaintiff's evidence failed to established the location of the line claimed by her, and the grant of a nonsuit was not error.
ARGUED SEPTEMBER 10, 1958 — DECIDED OCTOBER 10, 1958.
Mrs. McClung, as the owner of described land, filed a petition to permanently enjoin the defendant from maintaining a "fence or any part thereof upon the said described land of petitioner," and to permanently enjoin the defendant "from occupying or attempting to occupy said described land of petitioner or any part thereof and from interfering with petitioner's use of said described land or any part thereof."
The bill of exceptions assigns as error a judgment by the trial court granting a nonsuit, on motion of the defendant, at the conclusion of the plaintiff's evidence. Error is also assigned on the refusal of the trial judge to admit in evidence a certain blue print or plat identified as plaintiff's Exhibit No. 5. The bill of exceptions recites that the blue print or plat was not offered as an official plat, but as a diagram of the property in dispute and shown by the evidence of T. A. McClung, witness for the plaintiff, as correctly representing "plaintiff's property and the property of plaintiff in dispute and whereon the alleged trespass" was claimed to have been committed.
The petition described the plaintiff's land as being located in Land Lot 13 in the 18th District of DeKalb County, "beginning at a point marked by an iron pipe located 3 feet northeasterly from the northwest corner of the wagon or tool house in the rear of the garage of petitioner." With reference to the location of the fence, the petition alleged that "Said fence . . . begins at the southwesterly corner of said above described property of petitioner and runs 121 feet northerly to a point approximately 8 feet east of the west line of the above described land of petitioner and thence west to the west line of said described land of petitioner, thereby forming a triangular strip of land with the northerly side of the triangle, marked by the said short portion of said fence of approximately 8 feet in length."
The plaintiff offered the testimony of herself and that of her husband, T. A. McClung. With reference to the location of the line claimed by her, or as to the location of any line, she testified: "Since 1936 we have kept the land up back there — kept a garden or a yard. That was back to several feet behind this fence to the back of the shed. . . Prior to the erection of the fence, we allowed Mr. Schulte [the defendant] to saw off a part of that tool shed, . . . We knew that about 18 inches of the shed was over the line, but we had permission of Mr. Hammett during his lifetime to do it."
T. A. McClung testified with reference to the location of the fence and the line claimed by the plaintiff, and the plat which was rejected in evidence, as follows: "The fence is about 141 feet long. It starts down on the line and goes angling across to my garage. Now part of the 18 inches of the shelter is over. It has been there 12 or 13 years. I asked if I could go over the line about 18 inches and he said all right. . . The fence corner[s?] up to the corner of my garage and the line is about 8 feet below the corner of the garage, but the shelter in the back is about 18 inches over the line. . . I do not claim the 18 inches which I knew the shed was over. I told them it was over the line. I told the surveyor. I told Mr. Harrison, who was working for them. . . I told them I knew the shed was over the line, and I had no intention of moving it. I had a survey of my property back in 1938, but not since then. I counted that I own more property than was acquired by the deed, I own back to that line. . . Plaintiff's Exhibit 5, which you hand me, is a diagram which I have seen before. It reflects a drawing of my land and the line and houses thereon as I claim they exist. It shows my house, garage, the tenant house, and a barn, which is not there now. It does not show the shed behind the garage. . . In relation to the fence the line is about 8 feet from the fence. The lower end of this fence is on the line. . ."
On recross examination, the witness testified as follows: "I am pretty well familiar with the location of the land lot line between land lots 12 and 13. I just don't know if I can show that on this plot. I just know what I have been told. My stobs, where they go. They got off the line where this fence is over my line down near the chicken house. I have never surveyed the land lot line. I do not know the location; I am not a surveyor. . . I know where the line has been since 1931, and I have been going back to the line. I could not accurately put the land lot line on this map."
Surveys or plats made pursuant to the requirements of Code § 23-1112 are presumptive evidence of the facts set out therein. In the present case it is conceded that the plat in question (plaintiff's Exhibit No. 5) did not meet the requirements of this section of the Code. It is contended, however, that the plat was verified by the testimony of T. A. McClung, and that it was, therefore, admissible as illustrative of the oral testimony of this witness. It is true that unofficial surveys are admissible when proved to be correct. Bunger v. Grimm, 142 Ga. 448, 449 (5) ( 83 S.E. 200, Ann. Cas. 1916 C 173); Reynolds v. Snellgrove, 158 Ga. 683 ( 124 S.E. 136); Mickle v. Moore, 188 Ga. 444, 448 ( 4 S.E.2d 217); Durden v. Kerby, 201 Ga. 780 ( 41 S.E.2d 131).
In the present case the testimony of T. A. McClung was insufficient to prove the correctness of the plat (plaintiff's Exhibit No. 5). His testimony established, beyond question, that he did not know the location of the west line of Land Lot 13, which was the west line of his wife's property, and the east line of the property of the defendant in Land Lot 12, and he testified that he could not place this line on the plat. It is not a plat of the lands described in the petition, but is a plat of a much larger tract, as shown by the measurements and distances set out therein. The petition alleges that the plaintiff's land is described as beginning at an iron pipe located 3 feet from the northwest corner of the tool shed of the plaintiff. The testimony of both the plaintiff and her husband shows that a part of the tool shed is over the line and located on property of the defendant. The testimony of T. A. McClung shows that the tool shed referred to is nowhere shown on the plat. The plat, therefore, could not aid in locating the line claimed by the plaintiff, and it was properly excluded.
Neither the allegations of the petition, nor the testimony of the witness T. A. McClung, is sufficient to establish the location of any line. The petition alleges that the true line is "approximately 8 feet east" of the fence at the widest point, and McClung testified that, in relation to the fence, "the line is about 8 feet from the fence." In effect, the petition was one to recover possession of a triangular strip of land beginning at a point on the admitted true line, and running 121 feet in length, thence "approximately 8 feet" west of the line claimed by the plaintiff. It is essential to the maintenance of an action for the recovery of land that it be described with such certainty that, should the plaintiff recover, the sheriff in the execution of a writ of possession can deliver possession of the lands in accordance with a valid description contained in the judgment of the court. Williams v. Perry. 136 Ga. 453 ( 71 S.E. 886); Dodd v. Madaris, 206 Ga. 497 ( 57 S.E.2d 597); Callaway v. Armour, 208 Ga. 136 ( 65 S.E.2d 585).
The testimony of both the plaintiff and her husband shows that they had encroached upon the lands now owned by the defendant, and that this encroachment was had with the permission of the then owner. The plaintiff did not acquire any prescriptive right by the permissive encroachment made upon the lands now owned by the defendant, since it is not shown by any testimony that either the plaintiff or her husband gave any notice at any time that they were claiming adversely to the rights of the defendant. Code § 85-402; Rucker v. Rucker, 136 Ga. 830 ( 72 S.E. 241); Johnson v. Mary-Leila Cotton Mills, 155 Ga. 344 ( 116 S.E. 609); Harris v. Mandeville, 195 Ga. 251 ( 24 S.E.2d 23).
The testimony on behalf of the plaintiff was insufficient to establish the location of any line with the degree of certainty required by law, and the grant of a nonsuit was not error.
Judgment affirmed. All the Justices concur.