188 Ga. 80 | Ga. | 1939
Lead Opinion
Irwin Fitzpatrick brought suit against Massee-Felton Lumber Company and Joe Brown. The first count was for trespass, for cutting timber, with a prayer for damages. The second count was based on allegations appropriate to relief by injunction against the cutting of timber. The land involved consisted of lots 293, 294, 295, and 296 in the 24th district of Twiggs County. Brown was a nominal party, and filed no defense. The other defendant answered, averring ownership in itself of the four lots of land, and denying that the plaintiff had any title thereto. The case was referred to an auditor, who- reported three findings of fact, to wit: first, that Massee-Felton Lumber Company holds the true title to the lands, and that Fitzpatrick has no vali¿ paper title to the same; Second, that Fitzpatrick has no prescriptive title thereto; third, that the timber cut on those lots by the defendants was their property, and that any other timber cut off of other lands is hot involved in this action. The final conclusion, treated by the parties as a finding of law, was that the plaintiff was not en
The only assignments of error deal with the refusal of the judge to approve the exceptions to the report of the auditor, and to the final judgment. The finding of law. naturally followed the findings of fact. If the exceptions of fact are not sustained, the exception to the finding of law is not well taken, and vice versa. As expressed by counsel for the plaintiff in their brief, “the exceptions of law are naturally incident and consequent upon there being no basis of support in the evidence for the auditor’s findings.” Therefore we shall deal specifically only with the findings of fact and the exceptions thereto. In an equity case the losing party can not, as a matter of right, have a jury pass upon exceptions to the findings of fact by an auditor. In such case, if the judge approves an exception of fact, the issue is referred to a jury; but if he refuses to approve an exception of fact, his ruling will not be disturbed unless there be no evidence to support the finding. Therefore we are only to determine, from an examination of the record, whether the findings were without evidence to support them, and contrary to all the evidence in the case. Lamar v. Allen, 108 Ga. 158 (33 S. E. 958); Fowler v. Davis, 130 Ga. 442 (2) (47 S. E. 951); Orr v. Cooledge, 125 Ga. 496 (3) (54 S. E. 618); Faucett v. Rogers, 152 Ga. 168 (108 S. E. 798); Crim v. Alston, 169 Ga. 852 (151 S. E. 807); DeLaPerrie v. Williams, 175 Ga. 339 (165 S. E. 214); Bradley v. DeLoach, 176 Ga. 142 (167 S. E. 301).
In finding of fact number 1 the auditor finds “that [a] the Massee-Felton Lumber Co. holds the true title to the land in question, by written evidence of title; and [b] that Irwin Fitzpatrick has no valid paper title to the same.” We shall for the moment consider the latter part of the conclusion, to wit, that Fitzpatrick has no valid paper title. In the light of the contentions of the parties as made by the pleadings, the evidence, and the briefs, we take it that the meaning of this finding is that Fitzpatrick did not connect himself with the true paper title to these lots, nor did he produce a conveyance from one shown to have had title. It is .not
A writing capable of serving merely as color of title can not transmit title, and is useless in proving title except as it illustrates the character .and extent of possession. Fitzpatrick, however, testified that “In 1895, deputy United States marshal put me in possession of all that tract of land, and I have never been out of possession. He put me in as agent for the New England Mortgage Security Company.” In explanation of the above, he swore in answer to questions by the auditor as follows: “Q. Have you ever lived on the Tarver place? A. I am living on it now. Q. That was on lot 181 on this map put down as ‘Tarversville’ ? A. Yes, sir. Q. When did you move to lot 181 ? A. I was put in possession of it in 1895, and moved there that June or the next June, and have been on that lot ever since. I have had the same ownership over all that Tarver stuff. Q. Is that the time the marshal put you in possession? A. Yes, sir. Q. Just what did the marshal do when hebame down that time ? A. He had the U. S. marshal Lucius M. Lamar deed that he made Flint, and read off every one of the lots, and notified me that he was coming a certain day and for all tenants on the plantation to be there, and he read off all of the lots and told every one of them that I was agent for the New England Mortgage Security Company and to hold under me because they had had so much trouble with Mr. Tarver.”
Whose tenants were there ? On which of the several tracts named in the marshal’s deed did they live? This far from supports his statement on his direct examination that he was put in possession of all these lands in 1895, and has been in possession of them continuously ever since. And that is all the testimony there was to show it, except what he claims as actual possession of the four particular lots involved, and his actual possession of lot 181. As to this lot, he swore he was put in possession of it in 1895, moved there that June or the next June, and had been on it ever since. Lot 181, according to the deed, is a part of the tract known as Tarver home place. Under the authorities heretofore referred to, his actual residence there could not give him constructive possession of lots 293, 294, 295, and 296, which were a part of another distinct tract. “A residence upon, and the actual possession and occupation of one of two tracts of land conveyed to the defendant
The second finding of fact by the auditor was that Fitzpatrick had no prescriptive title to those lands. He based this on the further finding that there was no actual possession of these lots in him. What is title by prescription? “Title by prescription is the right to property which a possessor acquires by reason of the continuance of his possession for a period of time fixed by the laws.” Code, § 85-401. What are the essentials of a prescriptive title ? Actual adverse possession of lands for twenty.years, by itself, shall give good title by prescription. § 85-406. Adverse possession of land under written evidence of title, which means color of title, for seven years shall give a like title by prescription. Possession is of two kinds, actual and constructive. “Actual possession of lands is evidenced by inclosure, cultivation, or any use and occupation thereof which is so notorious as' to attract the attention of every adverse claimant, and so exclusive as to prevent actual occupation by another.” Code, § 85-403. “Constructive possession of lands exists where one having paper title to a tract of land is in actual possession of only a part thereof. In such a ease the law construes the possession to extend to the boundary of the tract.” § 85-404. Possession to be the foundation of a. prescription must not have originated in fraud. § 85-402. The fraud here referred to is actual or positive fraud. § 85-414. Tested by these principles, we have for determination, not whether there was evidence before the auditor which would have supported a finding in favor of the plaintiff, but whether the evidence- was such as demanded a finding in the plaintiff’s favor. The four lots here involved were a part of a much larger acreage of swamp land, comprising in all
It is next insisted that the finding of the auditor that Fitzpatrick had no prescriptive title to the four lots can not be sustained, because the evidence shows that in addition to his having since 1895 a chain of deeds purporting to convey the same to him and those under whom he claims, he had them enclosed for more than seven years. The evidence reported by the auditor indicates that a plat was introduced. None, however, appears. But by piecing together various parts of the testimony as they may be gathered from a lengthy record, the situation with respect to this contention is as follows: Of the four lots involved, numbers 295 and 296 have as their western boundary the Ocmulgee river, the latter lying directly south of the former. Lots 294 and 293 are immediately east, respectively, of 295 and 296. All four lie south of Savage creek, north of Crooked creek, and west of the right of way of the Southern Railway. In the main, all the land lying between the two creeks, the railway, and the river is swamp land, subject to overflow, and unfit for actual physical occupancy as well as for cultivation. In 1915 Fitzpatrick built a fence above Savage creek, commencing at the river, and running generally east until it reached nearly to the railroad right of way, where a higher elevation began and where the uplands commenced. The fence above Savage creek was between three and four miles from the lots
But it is insisted that these four lots were a part of a large area of swamp land the whole of which was enclosed, and therefore that the plaintiff brings himself within the terms of the Code, § 85-403, which declares that “Actual possession of lands is evidenced by inclosure, cultivation, or any use and occupation thereof which is so notorious as to attract the attention of every adverse claimant, and ’so exclusive as to prevent actual occupation by another.” It is not claimed, of course, that these lots were entirely surrounded by any artificial enclosure, but that, although there was no fence along Graham’s lake and the Ocmulgee river, these two bodies of water acted as natural barriers, which together with the fence, the location of which has been heretofore indicated, provided a complete enclosure. ' In McCrea v. Georgia Power Co., 179 Ga. 1, 14 (174 S. E. 798), it was held that the following request to charge contained a correct principle of law: “To constitute actual possession by inclosure, the land must be completely inclosed; but it is not necessary that it should be completely inclosed, on every side, by artificial, means, .such as fences. Natural barriers, in part, may be utilized, provided, in connection with fences, they constitute a'eom
It has been argued, that, conceding for the sake of the argument that the river and the lake were natural barriers, still the law would not declare that the four lots here involved were in the actual possession of the plaintiff by virtue of an enclosure, when it is shown that the fence touches none of them, and one side is some miles distant, and that there is nothing about the natural barriers to indicate dominion over this particular land; that God placed the natural barriers there, and it would never occur to any one that they expressed any idea of dominion by man of lands touching them. There is strength in the argument, but we do not find it necessary to decide -whether in such a situation even- a natural barrier, aided by a fence which does not touch the lands involved, and one side of which is more than three miles distant, could be considered as evidencing actual possession of the lands surrounded, together with other lands, by the fence and the natural barrier. The evidence before the auditor did hot demand a finding that Graham’s
One remaining point needs to be noticed. The auditor made an affirmative finding that the Massee-Felton Lumber Company had title. An exception to this was filed, which was disapproved by the judge. In its answer it set up title, but the plaintiff insists it was not established. Its claim of title originated in á warranty deed from William Bryan to Bennett Jones and Daniel G. Hughes, dated November 16, 1861, the property being described as follows: “lots 241, 264, 269, said lots containing 200-1/2 acres, more or less, also lot No. 293, 120 acres of fractional lots 292, 291, 296, and 297; also 100-1/4 acres, being one half of lot 294; making in the aggregate 1100 acíes, more or less. All of the above lots and parcels of land being situate in the 24th. land district of Twiggs County, Georgia, and known as the plantation of the said William Bryan, on the Ocmulgee river, adjoining lands of Tarver, Slappey, and others.” No possession was shown in
Judgment affirmed.
Concurrence Opinion
who concurs in the result, but not in all that is said in the opinion. While the evidence did not demand a finding for the plaintiff on the issue as to boundary and possession as dealt with in the eighth division of the opinion, it would have authorized a finding for him.
