Opinion
17386.
MARCH 12, 1951.
Equitable petition. Before Judge Edmondson. White Superior Court. November 18, 1950.
Wheeler, Robinson Thurmond, for plaintiff in error.
G. Fred Kelley and C. H. Edwards, contra.
This being the first grant of a new trial, in a suit between coterminous landowners to enjoin the cutting of timber, where the evidence was in conflict as to the location of the dividing line, the evidence did not demand a finding in favor of the defendant; and, accordingly, it cannot be held as a matter of law that the judge abused his discretion in granting a new trial, after having directed a verdict in favor of the defendant. Code, § 6-1608; Van Giesen v. Queen Insurance Co., 132 Ga. 515 ( 64 S.E. 456); Glenn v. Tankersley, 187 Ga. 129 ( 200 S.E. 709).
Judgment affirmed. All the Justices concur.
No. 17386. MARCH 12, 1951.
C. H. Lewis and Ralph Lewis filed in White Superior Court, against Arthur Seabolt, a petition seeking to enjoin the cutting of timber on seven acres of land lying in parts of land lots 2 and 3 in the Second District of White County. The petitioners and the defendant are coterminous landowners. Each claims title to the land in dispute, which is situated between the petitioners' land on the west, and the defendant's land on the east. The correct location of the boundary line between the litigants is the controlling question.
The petitioners and the defendant claim under separate chains of title, each of which originated from a common source, to wit, H. H. Bowen, one chain ending in the petitioners and the other in the defendant. The defendant's chain commenced on November 17, 1902, when Bowen executed a deed to his daughter, Mrs. Emma Lee LaPrade, conveying the land now owned by the defendant. The petitioners' chain commenced on January 5, 1906, when Bowen executed a deed to another daughter, Mrs. Jane McGee, conveying the land now owned by the petitioners. Each deed was duly recorded.
The deed in the defendant's chain described the disputed line as "Thence up the hollow and crossing the big road to an old road to a black gum; thence south to original line." The subsequent deed in the petitioners' chain described the disputed line as: "Thence the hollow to where it crosses the big road, thence nearly south to an old road, thence with said old road nearly a southeast course to a black gum tree now marked, thence with a line above marked out nearly south direction to the original line."
Manifestly each of the deeds from the common grantor referred to one and the same tree which was described in 1902 as a "black gum," and subsequently in 1906 as a "black gum tree now marked." There was evidence for the petitioners that the tree in question was on an old road that ran in a southerly direction from an agreed point on the big road, while witnesses for the defendant testified that the location of the tree in dispute was 192 feet west of the tree which the petitioners claimed was on the dividing line.
At the conclusion of the evidence the trial court directed a verdict for the defendant. The petitioners' amended motion for a new trial was granted, and the case comes to this court for review upon the defendant's exceptions to that judgment.