Opinion
18459.
SUBMITTED JANUARY 12, 1954.
DECIDED FEBRUARY 8, 1954.
Complaint for land. Before Judge Stephens. Laurens Superior Court. October 28, 1953.
C. C. Crockett, for plaintiff in error.
Lester F. Watson, contra.
In passing on the question of whether or not the court rightly awarded a nonsuit, the evidence must be taken most strongly in favor of the plaintiff; and when the evidence in this case is so construed, it was sufficient to make out a prima facie case in favor of the plaintiff, and it was error to grant a nonsuit.
SUBMITTED JANUARY 12, 1954 — DECIDED FEBRUARY 8, 1954.
J. D. Williams filed a petition in Laurens Superior Court against Archie M. Smith which as amended alleged substantially the following: The petitioner and the defendant are coterminous landowners. Each claims title to approximately 20 acres of land, which is situated between land admittedly owned by the petitioner on the northeast and by the defendant on the southwest. Each claims under separate deeds from C. J. Beddingfield, dated October 18, 1947. The land conveyed to the petitioner contained exactly 150 acres extending in a southwest direction from a named public road. The conveyance to the defendant described his land as extending to the line of a 150-acre tract "this day sold to petitioner, . . . but does not extend beyond the line of" petitioner. When the parties obtained their deeds, they agreed to have a competent surveyor fix the limit of the petitioner's 150-acre tract to the line of which the defendant had bought. They were unable to obtain immediately the services of a surveyor, but never changed the agreement. However, both parties had cattle which they wanted confined to their own land, and they then agreed to put a temporary fence of two strands of barbed wire on or about what they guessed was the dividing line, with the intention of later locating the true line with the help of a surveyor. It was never intended or agreed that the hastily put-up wire was to be a permanent division of the two tracts of land. Neither party was concerned as to who would gain or lose acreage by use of the temporary barbed wire stretched across the land, and it was more convenient to run it at the place they chose. On May 19, 1952, the petitioner had the land surveyed, and the survey showed that the wire fence gave the defendant 20 acres of the petitioner's 150 acres, which gave the defendant 149 acres instead of 129 acres, more or less. After the line was thus established, the defendant refused to permit the petitioner to move the fence, contending that it was on the exact line, and the defendant is working pine trees on the land in dispute for turpentine purposes. The petitioner prayed: that process issue; that the defendant be enjoined from trespassing on the land in question; that the petitioner recover judgment against the defendant for $250, which was alleged to be the value of the turpentine already sold; that judgment be rendered vesting title to the 20 acres in the petitioner; and that the petitioner have general equitable relief.
The defendant filed an answer in the nature of a cross-petition, in which he denied material allegations of the petition and alleged: At the time of the execution of the deeds it was known to the grantor and to each of the grantees that the dividing line was unascertained. The petitioner and the defendant came together soon thereafter, and the petitioner had someone, supposedly a surveyor, and they marked out and established a permanent dividing line. Each agreed on the line and recognized it as the permanent dividing line until some time in 1952, and therefore it cannot be revoked by either. The answer prayed among other things: that the line referred to therein be decreed to be the permanent dividing line between the parties; that the petitioner be enjoined from going across the dividing line; that the defendant have general equitable relief.
On the question of whether the parties, by the erection of two strands of barbed wire, agreed on the location of the permanent boundary line between their land, or whether the fence merely marked a temporary line for convenience until they could secure the services of a surveyor, the petitioner testified in part: He purchased 150 acres, no more and no less. The defendant purchased the remainder of the tract. There were no lines or markers showing where the 150 acres would come to. There was no agreement made at that time as to how they would locate the 150 acres. They were going to determine the 150 acres by getting a surveyor, but were delayed in so doing. He and the defendant agreed on a line for the time being. The petitioner was going to have some pulpwood thinned out where it was too thick, and before the pulpwood cruiser came in there, the defendant met them at the corner where that line was. They asked him about running the line, and he said he could not run a line that would stand up through there. They had some 1,500 feet through there. They put a barbed-wire fence between their land in April, 1949. Each wanted the fence to turn his stock back. They located the place to put the fence by standing apart as far as they could see one another. They were estimating the place to put the fence and were not undertaking to be exact and accurate in locating the line between them. They had an agreement there that morning that the line would be moved either way when the surveyor surveyed it. After the survey the defendant refused to allow the fence to be moved, claiming that the morning they put the fence there it was agreed as the permanent line. At the time the fence was put there it was clearly understood the fence would be moved the petitioner's way or the defendant's way. Of the 20 acres in dispute, an acre and nine-tenths is cultivated and the rest of it is in woodland. It is suitable for turpentine purposes. Three days after the survey was made, the petitioner asked for the 20 acres. The defendant refused to give it, and has turpentined the trees at considerable profit.
On cross-examination the petitioner testified: They purchased their land October 18, 1947. He did not take possession until 1948. The defendant was living on the place. At the time the petitioner took possession neither he nor the defendant knew where the dividing line between the two tracts was. The grantor did not know where the dividing line was. It was a year and two months after the petitioner took possession that they put up the fence in question. Up to that time they recognized the line through an open spot in the branch. They stayed pretty close to this line, and did not erect a fence on that line. The defendant wanted to recognize the creek as the line until they moved there and took possession. The cruiser was working for the Union Bag Company of Savannah. He had a chain and a compass. He was cruising pulpwood for the petitioner. He cruised for what the petitioner and the defendant agreed on. They put the fence there in 1949. They had agreed on this line for working turpentine. This man cruised the timber up to the line that the petitioner and the defendant agreed on. They recognized the line they had agreed on so far as selling timber was concerned. The next year they put up the fence, in 1949. Each for the time being paid equal parts to put up the fence. The petitioner worked the turpentine up to where his fence crossed the run of the creek. The surveyor ran the line December 10, 1950. Q. "After erecting this fence, marking out that line, blazing those trees, by your conduct and acts, did you not recognize that as the dividing line between these two tracts?" A. "By agreement, yes. I did not bring any action until 1953." There is about an acre and a half in cultivated land. The defendant was cultivating all of it until they put up the fence. The fence divided the cultivated patch. It put about an acre on the defendant's side. The defendant did not touch any on the petitioner's side after the fence was put up. Each observed it until this suit was brought. They agreed to recognize the creek for about 5 months before petitioner moved up there. Q. "And that was agreed between you and . . . [the defendant] that that would be a temporary line until you found out more about where the line was, is that right?" A. "That's right. Moving the line from the creek to the wire fence lost to the defendant about a quarter of an acre."
The petitioner testified on redirect examination: At one time they worked up to the fence. That was before the petitioner moved on the land. That was a temporary arrangement, until they got a surveyor. They put up two strands of barbed wire. That was to be temporary, until they could measure out the 150 acres. The surveyor came twice. He made the plat in May, 1952. The first time the line was run the petitioner went to the defendant about it and he was not satisfied, saying that the petitioner had obtained some little jack-leg surveyor. The petitioner said he would get him back so the defendant could be with him. The defendant knew when the surveyor was coming and was not there. The defendant had agreed that when the true line was found the barbed-wire fence would be done away with.
On re-cross examination: Q. "The fence was put there, you say to keep the cows back, that wouldn't hinder you from going across that fence and working your turpentine if you thought it was yours, would it?" A. "Well if I had agreed with you on something you think I — ." Q. "That's exactly what I am asking you, that's exactly what I wanted you to say, you agreed with him that was the line and you were not going over it were you?' A. "That's right for the time being."
On redirect examination: "By the time being I mean that we had agreed for the line to be there. But it was understood that I would go over it or back. There was no time set, no set date. It was until we got a surveyor."
Recalled for further cross-examination: "I had the cruiser down there for the purpose of selling pulpwood. I did not sell."
At the conclusion of the petitioner's evidence, the court, on motion of counsel for the defendant granted a nonsuit, to which judgment the petitioner excepted.
The question for determination is whether the evidence for the plaintiff was sufficient to prevent a nonsuit. Therefore, the relevant evidence has been set out at length.
"A nonsuit shall not be granted merely because the court would not allow a verdict for plaintiff to stand; but if the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit shall be granted." Code § 110-310. If the plaintiff fails to prove what he has alleged, or if he actually proves every fact charged, but on cross-examination or otherwise disproves his case by establishing beyond doubt the existence of other defensive facts which make it manifest that he ought not on the whole evidence to recover, a nonsuit should be granted. Evans v. Josephine Mills, 119 Ga. 448, 450 ( 46 S.E. 674). "A motion to nonsuit presents for decision the single question whether or not the evidence introduced in behalf of the plaintiff, assuming it to be true, proves his case as laid." Reeves v. Jackson, 113 Ga. 182 (2) ( 38 S.E. 314); Clark v. Bandy, 196 Ga. 546 ( 27 S.E.2d 17). In passing on the question of whether or not the court rightly awarded the nonsuit, the evidence must be taken most strongly in favor of the plaintiff. National Land Coal Co. v. Zugar, 171 Ga. 228 (2) ( 155 S.E. 7); Burton v. Hart, 206 Ga. 87, 90 ( 55 S.E.2d 594); Wright v. Roseman, 209 Ga. 176, 183 ( 71 S.E.2d 426); Jackson v. Thompson, 77 Ga. App. 367, 370 ( 48 S.E.2d 903), and citations.
The plaintiff's testimony on direct examination was amply sufficient to make out a prima facie case. While he answered, "by agreement, yes," when asked on cross-examination, "after erecting this fence, marking out that line, blazing those trees, by your conduct and acts, did you not recognize that as the dividing line between these two tracts," yet, the above answer was not inconsistent with the petitioner's testimony as a whole, to the effect that under their agreement the fence merely marked a temporary line for convenience until they could secure the services of a surveyor to measure out the 150 acres called for in the petitioner's deed, at which time the permanent boundary was to be established. Furthermore, the plaintiff testified that they asked the pulpwood cruiser about running the line, and he said he could not run a line that would stand up. There was no evidence that the pulpwood cruiser or any other person was requested to measure out the 150 acres until the survey that the petitioner relies on was made on May 19, 1952.
Under the evidence in the present case, it was error to grant a nonsuit.
Judgment reversed. All the Justices concur.