In June 2001 East Atlanta Land Company filed a petition to quiet title to property known as 430 Ashburton Avenue. East Atlanta purchased the property at a December 1999 tax sale pursuant to a writ of fieri facias. Gurley, one of several named defendants, counterclaimed, claiming that he was the true owner of the property by virtue of adverse possession.
The case was referred to a special master, and Gurley moved for a jury trial pursuant to OCGA § 23-3-66. Gurley’s motion was denied, and the special master’s proceeding continued. The special master made his report finding fee simple title to be in East Atlanta and requesting the court to assess a portion of the special master’s fees against Gurley as a part of the costs. The superior court adopted the special master’s findings, decreed fee simple title in East Atlanta, and fixed the special master’s compensation, a portion of which the court taxed against Gurley as a part of the costs. Gurley appeals and asserts error in the denial of his motion for a jury trial. We affirm.
1. Conventional quia timet is employed to quiet title as against “any forged or other iniquitous deed or other writing which, though not enforced at the time, either casts a cloud over the complainant’s title or otherwise subjects him to future liability or present
OCGA § 23-3-43, which was enacted in 2000, provides that for actions in conventional quia timet “there shall be no right to a jury trial.” While the legislature has, as in other equity cases, precluded the right to jury trial in conventional quia timet actions under OCGA § 23-3-40 et seq., it has taken no such action for suits in quia timet against all the world. See OCGA § 23-3-60 et seq. Thus, the right to jury trial for quia timet against all the world has been preserved. See OCGA § 23-3-66;
Paul v. Keene,
The special master found that this case, ostensibly filed under OCGA § 23-3-40, was a suit in conventional quia timet. Accordingly, the special master denied Gurley’s motion for a jury trial, citing OCGA § 23-3-43. We find, however, that the substance of this case was quia timet against all the world, since East Atlanta Land sought to quiet title to land purchased at a tax sale, and establish that East Atlanta held superior title to all the world in the subject property.
State Hwy. Dept. v. Charles R. Shepherd, Inc.,
2. Gurley’s case does not present facts requiring the intervention of a jury. The evidence shows that Gurley owns and rents to various tenants property immediately adjacent to the property in question. Gurley’s deed describes that property, known as 436 Ashburton, as having dimensions of 50 feet by 150 feet, with a 50 foot frontage on Ashburton Avenue. The deed refers to a subdivision plat that describes Gurley’s lot and the subject property as two distinct lots. Gurley has never lived at 436 Ashburton, and his rental agreement purports only to lease 436 Ashburton: However, throughout the past 20 years some of Gurley’s tenants have used the subject property intermittently as a side yard. 1 Gurley never paid taxes on the subject property and never made a redemption tender.
In order for possession to be the foundation of prescriptive title, it (1) must be in the right of the possessor and not of another; (2) must not have originated in fraud except as provided in OCGA § 44-5-162; (3) must be public, continuous, exclusive, uninterrupted, and peaceable; and (4) must be accompanied by a claim of right. OCGA § 44-5-161 (a).
The sporadic use of the property by some of Gurley’s tenants was insufficient to establish adverse possession. There is no showing of uninterrupted and continuous possession for the requisite 20 years. See
Martin v. Clark,
Judgment affirmed.
Notes
Various tenants used the property to park vehicles, to plant vegetables, to tether pets, and occasionally to host social gatherings.