Saterfield v. Randall
44 Ga. 576
Ga.
1872
Check Treatment
Warner, Chief Justice.

This was an action of ejectment, to recover the possession of a tract of land in Lumpkin county. On the trial of the case, the defendant claimed the land under a prescriptive right to the possession of the land for seven years, under a color of title and claim of right. Whether the defendants’ possession, under the evidence, was sufficient to protect him under the law, was a question of fact for the jury, and if they had found a verdict for the defendants, we should *578not have been disposed to disturb it. But under the charge of the Court, the jury could not well have done otherwise than have found a verdict for the plaintiff. The Court charged the jury, “that if they believed, from the evidence, that the lot of land was not adapted to agricultural cultivation, but was chiefly valuable for timber and mining purposes, then they could consider whether the use and occupation which defendants had enjoyed was equivalent to such actual possession as would be the foundation of a prescriptive title, either for seven years under color of title, or twenty years without title, but such use and occupation must be continuous, that is, from day to day, month to month, and from year to year.” This charge of the Court, in view of the evidence in the record, was error, and a new trial should have been granted.

Let the judgment of the Court below be reversed.