16 Ga. 141 | Ga. | 1854
By the Court.
delivering the opinion.
It is the intention to claim title which makes the possession of the holder adverse; and this is the doctrine upon which the decision in every case proceeds. If it be clear, therefore, that there is no such intention, there can be no pretence of an adverse possession. (Angell on Limit. 402, 412.) If one be the owner of a tract of land, and at the same time the agent of the owner of an adjoining tract, he cannot avail himself of the Statute, to support his title to a part of the land of his principal, of which he had taken possession upon a misapprehension of the boundary. (Cornegis vs. Carley, (3 Watts Rep. 280.)
Whether there be any evidence to justify the charge, that
But there is another portion of the charge, which requires more consideration. The Court instructed the Jury, that if Griffin’s grant covered the premises in dispute, then the verdict must be for the plaintiff.
Is this proposition necessarily correct? We think not.
Let us refer, for a moment, to the testimony of young Riley and Jonathan Wilder. Warren B. Riley swears, that he has. known the premises in dispute since 1885 or 1836. His father has been in possession since that time, first, as the agent of Major O. II. Prince, and afterwards, in his own right — he having become the purchaser of the property, when sold as the estate of Major Prince, by Col. Poe, the administrator. That either as agent of Prince, or in his own right, he had always held the land, exercising acts of ownership over it, by cultivating it, &e. This witness testifies, that he knows the lines well,. and that the line to which his father claimed, was the old original line. He has frequently seen the old blazes and trees which had all the appearance of the original Surveyor’s marks. That the owners of the adjoining lands set it up, as the original line, and were governed by it, and there was no dispute about it, until Adams bought the adjoining land. He further stated,, that all the parties, that is, those residing on the contiguous tracts, acquiesced in the line as fixed, until Adams bought;- and then Brantley, Adam’s father-in-law, made a fuss about’ the line in a Justice’s Court;
Jonathan Wilder swore that he acted as the agent of his uncle, Willis Wilder, who owned the land before Major Prince bought it. That at the timo it was sold, the blazes made b'y the Surveyor who run the land, were plain on the trees; and that he followed the original marks. That Riley’s fence is nearly on the line as run round by witness. That it is a little over at the corner, as well as he can -recollect, judging from his eye and from memory; subsequent examination has confirmed him in this opinion. He knowTs he is not mistaken as to the lines, because he followed the original Surveyor’s marks, then, fresh
The foregoing rules, Chief Justice Taylor remarked, had .grown out of the peculiar exigencies of the country, and were moulded by experience, to meet the demands of justice.
This doctrine is found scattered, broadcast, throughout the authorities ; and I had supposed to be too well understood and established, to require to be discussed at this day.
So then, notwithstanding Mr. Wood run out Lot No. 3, according to the courses and distances designated in the plot accompanying the grant, and conceding that the lines, thus run, would cover the premises in dispute; still, if the testimony of Wilder and Riley be true, as to the original lines of Lot No. 2, actually run and marked by the Surveyor, as a question of law, the plaintiff was not entitled to recover, nor wore the Jury bound so to find.
There is a small piece of ground which stands in this predicament ; it is included in Riley’s fence, but outside of the old boundary line. That being so, the title to this parcel of ground will not depend on the actual line run, as proven by the witnesses, because it is not included in it; still, it is inclosed by Riley’s fence. Hero, then, is possessio pedis. If this fence has been built seven years, then this strip of land will be covered by actual occupancy; otherwise, the plaintiff’s right to that will not bave been lost or taken away.
Judgment reversed.