118 Ga. 277 | Ga. | 1903
Woolfolk brought his actipn against Farr, to recover the possession of a strip of land 8 chains in width and 45 chains-in length, and to enjoin the defendant from cutting timber thereon. The trial resulted in a verdict and decree in favor of the plaintiff,, and the defendant excepts to the refusal of the court to grant him a new trial. It is conceded that the plaintiff is the owner of lot 112, and that the defendant is the owner of lot 111, in the 7th district of Chattahoochee county. The issue is as to the dividing line between the two lots. The plaintiff contends that lot 112 is a lot-of the ordinary size in the land survey of that portion of the State, that is, a lot 45 chains square, containing 202 1/2 acres. The defendant admits that the ordinary lot in that portion of the State-would be of the character just indicated, but contends that, by a mistake of the surveyors or otherwise, the two lots involved in the present controversy were not laid off in equal size; that lot 111 is a parallelogram, 45 chains on two sides and 53 chains on the other two, and that lot 112 is 45 chains on two sides and 37 chains on two. He also contends that even if the original land lines would not make lot 111 of the size just indicated, the owners of the two lots have acquiesced in a boundary line different from what the line would have been under a regular survey; and that, treating this-agreed line as the true line, the lots would be of the sizes above indicated. The lots in this part of the State were intended to be-laid off in lots 45 chains square, containing 202 1/2 acres. See, in this connection, the very able paper of Mr. Alex. C. King, of the Atlanta bar, in the Georgia Bar Association Reports of 1885, p-157. Whether the survey was actually made in accordance with this plan was, of course, a question of fact to be determined by the evidence in the case. If this was not true, the question as to whether a line between the two lots had been agreed on by the coterminous-owners was also a question of fact.
Error is assigned upon the following charge of the court: “If you should believe now that there was a recognized line between Mr. Farr and Mr. Woolfolk, although the same may not have been the true line, if it was the .recognized line between them, there was an agreement between Farr and Woolfolk that the line was at a certain place, and Farr was in possession of it for more than seven years, he would have the title to it; otherwise he would not.” This charge is alleged to be erroneous, because the law allows own
There is no decision of this court which would prevent the application in this State of the rule respecting parol agreements as to dividing lines. Nearly all of the decisions of this court upon the subject of dividing lines relate to the rule laid down in the section of the code, but the decisions in Clark v. Hulsey, 54 Ga. 608, and Cleveland v. Treadwell, 68 Ga. 835 (3a), are authority for the proposition that a parol agreement as to a dividing line may itself be binding, when executed, independently of the rule laid down in the code concerning acquiescence for seven years. The decision made in Miller v. McGlaum, 63 Ga. 435, is also in entire harmony with what has been said above. While it was ruled in that case that the parol agreement relied on was not binding, because not made to settle any dispute with respect to the true line, but to set up a totally different and independent line, with no occupancy of the part in dispute, the following language of Mr. Justice Jackson makes it clear that nothing said in that case conflicts with the ruling now made: “ If there had been any dispute on the
It is apparent from the foregoing that the charge of the court was ■erroneous. The evident idea of the trial judge was that the rule laid down in the section of the code concerning acquiescence was the only rule on the subject of force in this State, and that to give validity to a parol agreement it was essential that it should have been acquiesced in for at least seven years. The error thus committed requires a new trial. While the jury found under the evidence that the parties had not for seven years or more acquiesced in the line claimed by the defendant, they had no opportunity, in view of the judge’s charge, of passing upon the question whether there had been a valid parol agreement between the parties as to the line, independently of acquiescence for a long period of time. While the evidence as to the existence of such an agreement is meager, viewing it as a whole, the jury could have found that the plaintiff pointed out to the defendant the line claimed by him, and that he agreed with the plaintiff that this was the true line and acted on the agreement thus made. While the evidence does not show a distinct agreement between the parties, the circumstances point to such an agreement with sufficient certainty to have authorized a finding in favor of the defendant' on this theory. The weight of the evidence was probably with the plaintiff, but this is not the criterion for determining whether a new trial should have been granted.
The other assignments of error do not require any extended discussion. If other errors were committed, they were not pointed
Judgment reversed.