Opinion
42948.
ARGUED JULY 10, 1967.
DECIDED OCTOBER 26, 1967.
Breach of warranty of title. Glynn Superior Court. Before Judge Flexer.
Albert E. Butler, Thomas Thomas, for appellant.
Gibbs Leaphart, J. Alvin Leaphart, Cowart, Sapp, Alaimo Gale, A. A. Alaimo, for appellee.
Where a deed describes land as being bounded by a public right of way line, the boundary line of the land conveyed must be taken as the true line of the right of way and not the line as it was understood to exist at the time of the execution of the deed, if there is a variance.
ARGUED JULY 10, 1967 — DECIDED OCTOBER 26, 1967.
Plaintiff brought this suit to recover on a general covenant of warranty to land conveyed to plaintiff by defendant. The deed to plaintiff conveyed a tract in Land Lot 93 in the 3rd Land Distract of Wayne County, described as follows: "Commencing at the angle formed by the southwest line of right of way of State Highway Number 27 and the southeast line of right of way of State Highway Route Number 23, and from thence running along the said southwest line of said State Highway Number 27, south 46 degrees east, a distance of 335 feet to the portion of said lot known as the Colvin Subdivision and now owned by J. A. Odum; thence running south 44 degrees west, along the line of said Colvin Subdivision, a distance of 265 feet to land of Julia Dyal; thence along the line of said Julia Dyal's land, north 76 degrees west, a distance of 265 feet to the aforesaid southeast line of the right of way of said State Highway Number 23; thence following said line of right of way north, 29 degrees east, a distance of 412 feet to said first described commencing point. . ."
Both defendant and plaintiff filed motions for summary judgment. Evidence adduced at the hearing on the motions showed that defendant's predecessor in title had granted to the State Highway Department rights of way for the highways referred to in the above description. The southeast right of way line of State Highway 23 was not a continuous line crossing the southwest right of way line of State Highway 27. Instead, the right of way line of State Highway 23 at the intersection formed an arc having a 200-foot radius, the end of the arc joining the right of way line of State Highway 27. Plaintiff, assuming that both right of way lines were continuous straight lines, crossing each other, constructed a restaurant and service station building encroaching on the public right of way. He later removed this encroachment pursuant to demand by the State Highway Department.
Plaintiff took this appeal from the trial court's grant of summary judgment for defendant.
Where a deed describes land as bounded on one side by the land of a third person, the boundary line of the land conveyed must be taken as the true boundary line of the land of the third person and not the line as it was understood to exist at the time of the execution of the deed, if there is a variance. Hall v. Davis, 122 Ga. 252, 253 ( 50 S.E. 106). While the deed here also described courses and distances as shown in an attached plat, these must yield, as courses and distances occupy the lowest grade in the scale of evidence as to the identity of land. Riley v. Griffin, 16 Ga. 141, 148 ( 60 AD 726). The calls of the deed are for the right of way lines and along them, thus fixing the right of way lines, wherever they may be, as the true boundaries of the land conveyed. Morgan v. Godbee, 146 Ga. 352, 354 ( 91 S.E. 117). Thus none of the land traversed by the right of way was included in the conveyance to plaintiff. As a matter of law under the pleadings and the evidence adduced on motion for summary judgment, plaintiff was not entitled to recover damages for a breach of warranty of title, as covenants of title do not apply to land not included in the conveyance. Littleton v. Green, 130 Ga. 692 ( 61 S.E. 593); White Corbitt v. Stewart Co., 131 Ga. 460, 465 ( 62 S.E. 590). There being no genuine issue of material fact extant in the case, the trial court did not err in granting summary judgment for defendant.
Judgment affirmed. Pannell and Whitman, JJ., concur.