31 Ga. App. 553 | Ga. Ct. App. | 1924
1. “It is the duty of processioners to respect the actual possession of a landowner held under a claim of right for more than seven years, and to mark the lines between adjacent landowners so as riot to interfere with such possession. Civil Code (1910), § 3822 [Camp v. Cochrane, 71 Ga. 865 (2)]. Nevertheless, wdiere the muniments of title of the adjacent landowners call for a line which is the land-lot line between two .lots of land, and such line as run by the processioners passes in part through lands adversely held for seven years by one of the parties, the entire proceeding is not per se void.” Stewart v. Jackson, 144 Ga. 501 (2) (87 S. E. 656).
(a) In such a case the party who has been in actual possession of the strip of land in controversy for more than seven years under a claim of right should prevail as to that part of the line, and the rest of the line should be the original land-lot line between the two lots of land. Stewart v. Jackson, supra (3).
2. Under the above-stated rulings and the facts of the instant case (the actual possession of the strip of land in controversy, by the protestant, under a claim of right, for more than seven years, being disputed by the adjacent landowner), the court erred in dismissing the ease on the ground that the processioners, in running the line between the lands of the parties, disregarded the question of possession by the protestant, and that the return of the processioners was therefore void. Under the facts of the case the court should have submitted to the jury the question as to whether the protestant had been in actual possession, under a claim of right, for more than seven years, of the strip of land in controversy. And the jury should have been instructed that if they resolved that issue in favor of the protestant, then he should prevail as to that part of the line, “and that as to the remainder of the line their verdict should be according to their finding whether the line run by the processioners or that claimed by the protestant was the true line.”
Judgment reversed.
