Opinion
34995.
DECIDED MARCH 17, 1954. REHEARING DENIED MARCH 31, 1954.
Damages. Before Judge Perryman. Wilkes Superior Court. October 17, 1953.
Clement E. Sutton, Colley Orr, for plaintiffs in error.
Stevens Stevens, contra.
Since there was no competent evidence from which a dividing line between the adjacent landowners could be determined, a finding that the defendants (vendees of timber) cut timber belonging to the plaintiff was unauthorized, and the court erred in overruling the motion for a new trial on the general grounds.
DECIDED MARCH 17, 1954 — REHEARING DENIED MARCH 31, 1954.
Otis Myers sued William Strother and Claude Strother for damages allegedly resulting from the cutting of timber by the defendants from the lands of the plaintiff. The jury found for the plaintiff. The defendants except to the denial of their motion for new trial as amended.
In a settlement of the J. W. Jackson estate, E. H. Jackson and T. J. Jackson acquired title as tenants in common to a tract of land in Wilkes County, in the shape of an irregular triangle, containing 275 acres, more or less. It is assumed that E. H. Jackson and T. J. Jackson divided the 275 acres, more or less, by the exchange of deeds, each conveying to the other his one-half undivided interest in the 137 1/2 acres, more or less, which were conveyed. These deeds were not introduced in evidence, and it is only by inference that the conclusion is arrived at. Upon the death of T. J. Jackson, Mrs. Lucille Ellison and Rollin Jackson acquired the land owned by T. J. Jackson. E. H. Jackson, on June 11, 1948, deeded his 137 1/2 acres, more or less, to Miss Maude Bolton. This deed described the land as being bounded on the east by lands of Mrs. Lucille Ellison and Rollin Jackson. The plaintiff, Otis Myers, acquired this land from Miss Maude Bolton. Mrs. Lucille Ellison and Rollin Jackson sold the timber on 160 acres, more or less, to the defendants. The deed described the land as being bounded on the east by lands of Otis Myers and H. Casey Hill. Since the deeds exchanged between E. H. Jackson and T. J. Jackson are not in evidence, no boundary line can be determined and ascertained from the description of such a line in the deeds. If the line was not described in such deeds, if the deeds were sufficient to pass title (see Oglesby v. Volunteer State Life Ins. Co., 195 Ga. 65, 23 S.E.2d 404), there were only two other ways in which the dividing line could have been established: (1) by oral agreement between the adjoining owners, or (2) acquiescence for seven years by acts and declarations. Myers v. Jackson, 87 Ga. App. 161 ( 73 S.E.2d 220). The evidence in this case wholly fails to establish by any method the land line between the land owned by the plaintiff and that owned by Mrs. Lucille Ellison and Rollin Jackson, and the court erred in overruling the motion for a new trial on the general grounds.
Judgment reversed. Quillian and Nichols, JJ., concur.