54 Ga. App. 638 | Ga. Ct. App. | 1936
George E. Wilkinson filed with the processioners of the 123rd district of Richmond County, a petition to have the lines around his land surveyed and marked anew, and particularly the northern line thereof, this being the line between his tract and the lands of C. Clifford Rosier, Mrs. Ollie Pearl Beck, J. H. Poarre, and Freeman S. Rosier, these and others being named as the adjoining landowners. The processioners, together with the county surveyor, made their survey, and the processioners filed their return in accordance with the statute, the same showing that the adjoining landowners were given the required written notice, a plat of their survey certified by the surveyor being attached to their return. The survey and return were made under date of May 26, 1932, the date of the application therefor being May 9, 1932, a copy of which was attached to the return. Within the time allowed by law, Mrs. Beck, C. Clifford Rosier, and J. H. Pearre filed separate protests to the return of the processioners. Mrs. Beck alleged that the processioners and the surveyor started at an old mill-dam and undertook to trace and mark anew the line in question by fixing the high-water mark of the old mill-pond, which had not been in existence for more than twenty-five years; that the marked line went out on her land some fifty feet beyond where the waters of the old pond ever came; that the line so marked is not the true line, but Butler’s Creek is the true line; that she and her predecessors had been in actual, exclusive, open, and notorious possession of the land down to the run of Butler’s Creek for more than twenty-five years, but the processioners and
It is provided in the Code, § 85-1605, that in a proceeding to procession land lines, “ten days written notice of the time of such running and marking shall be given to all the owners of adjoining lands, if resident within this State; and the processioners shall not proceed to run and mark such lines until satisfactory evidence of the service of such notice shall be produced to them,” and in § 85-1606, that “It shall be the duty of the county surveyor, with the processioners, taking all due precaution to arrive at the true lines, to trace out and plainly mark the same. The surveyor shall make out and certify a plat of the same, and deliver a copy thereof to the applicant; and in all future disputes arising in reference to the boundary lines of such tract, with any owner of adjoining lands, having due notice of such processioning, such plat and the lines so marked shall be prima facie correct, and such plat, certified as aforesaid, shall be admissible in evidence without further proof.” So it would seem that failure to give an adjoining landowner notice as required by law would not work a dismissal of the proceeding as to the adjoining landowners who had been given the required notice, but that such proceeding would not be binding on an owner not having due notice thereof. After the motion to dismiss because the minor children of J. H. Pearre were not given written notice of the time and place of the survey as required by law, the applicant filed a petition alleging that the minors knew of the survey, and one of them went along with the surveyor and processioners; that their father, J. H. Pearre, and their uncle, C. Clifford Eosier, were notified and were present during the survey; that while the line was being run Eosier stated that he represented these minor children; and that the applicant asked that Pearre and Eosier be appointed guardians ad litem for the minors in the proceeding then before the court, and that the minors be made parties. The court appointed guardians ad litem, after rule nisi and proper notice, and the minors were made parties. This was error. The minors were not given written notice of the processioning proceeding. If present at the time and place of the survey, they could hot legally act for them
The applicant, Wilkinson, claimed that the high-water mark of the old mill-pond site on Butler’s Creek is the northern boundary of his land, and the true dividing line between his lands and the lands of the protestants. The protestants claimed that Butler’s Creek is the true line between the lands of said parties. -It seems that this old mill-pond had been in existence for many years, probably as far back as 1829, and that it continued to exist until the dam broke and the water left the pond site. Wilkinson’s tract of land, consisting of 582% acres, was conveyed to him by Mrs. Ann H. Jones in 1931, and was described as bounded on the north by property of Clifford Rosier and Freeman Rosier, and sep
There was abundant evidence to support the contentions of the applicant that the water-mark of the old mill-site was the northern boundary line of his land, and that the surveyor and the processioners followed this line in making their survey. But the protestants claimed that Butler’s Creek was the southern boundary line of their lands and the true dividing line between the lands of the parties; that the mill-pond had not been in existence for about twenty-five years; that they and their predecessors in title had been in possession, under a claim of right, of the land between Butler’s Creek and the line set up by the surveyor and proeessioners for twenty-five years, and had pastured this land and cut timber thereon for twenty or twenty-five years; that Butler’s Creek was agreed on by the predecessors in title of the parties as the dividing line between their respective tracts of land, after the mill-pond broke, and that this line had been acquiesced in by the predecessors in title of the applicant for more than seven years by acts and declarations. “When a line has been located by an executed parol agreement between the coterminous proprietors, or established by seven years acquiescence as provided by the Civil Code, § 3247 [1933, § 85-1602], the line thus located and established is binding on the grantees of the coterminous proprietors.”
A special ground of the motion for new trial complains that the court (after charging the jury "that if you believe from the evidence that the high-water mark of the pond was originally the correct line, but that the dam broke, and that these defendants, or either of them such as there may be, or more, went in possession of that land under a claim of right, and that continued for seven years, then the run of the creek would be the line, and in that event you would find for the defendants. Where actual possession has been had under a claim of right for more than seven years, such claim shall be respected and the lines run by the processioners so marked as not to interfere with such possession. I charge you that mere naked possession, with no intention of asserting ownership, is not such actual possession under claim of right as the law contemplates. So . . if you should believe from the evidence that the defendants, even though you found that the original line was the high-water mark of the pond, but that these defendants, or any one of them, went in possession of that land there, with the intention of asserting ownership and went into actual possession under claim of right, and that continued for seven years, then in that event you would find for the defendants”) erred in charging further: "However, if you believe they went in possession and that the high-water mark of the pond was the original line, but that it was mere naked possession with no intention of asserting ownership, then on that phase of the case you would find for the plaintiff, if you believe the evidence shows those to be the facts on that phase of the case.” It is contended that the last-quoted part of the charge was contrary to the
The judgment is affirmed on condition that it be amended by striking from it the names of the minors, Charles Pearre, Annie Pearre, Glorise Pearre, Adelle Pearre, Vera Pearre, and Dorothy Pearre. Otherwise, the judgment will, stand reversed.