162 Ga. 598 | Ga. | 1926
Mrs. Addie Byrd filed a petition for injunction against L. F. Shirley, and therein claimed damages for trespass. The trial judge granted an interlocutory injunction. On the trial of the case the jury returned a verdict finding in favor of an injunction and $10 damages. The defendant filed a motion for a new trial, which was overruled, and he excepted to this judgment. In her petition the plaintiff alleged that she was the owner of a tract of land described as twelve acres off of the southeast corner of land lot No. 1 in the 23d district in the 2d section of Gordon
1. On the trial the plaintiff tendered in evidence a deed from one Ellis, as administrator of W. M. Townsend, to William Thompson, plaintiff’s deceased husband, dated January 13, 1896, conveying lot of land No. 36 in the 23d district and 2d section of Gordon County, lot of land No. 2 in said district and section, and twelve acres of the southeast corner of lot No. 1 in said district and section, containing in all 232 acres, and known as all of the plantation of W. M. Townsend, deceased. Plaintiff also tendered in evidence a plat of the land in controversy, which showed that a part of said land was on the south side of Salacoa creek and part on the north side. She claimed that the land was enclosed as early as 1875 with a fence by Townsend or his predecessors in title; that her husband, William Thompson, bought the land in 1896; that she had been in possession of said land ever since, exercising acts
2. The first special ground of the motion for a new trial complains that the court incorrectly stated the contentions of the plaintiff in his charge to the jury. An examination of the record discloses that the court fairly stated the contentions of the parties to the jury, and this ground of the motion can not be sustained.
3. The second special ground of the motion complains that the judge erred in charging the jury upon perfect title. The defendant did not put in evidence a perfect paper title. He in
4. The third and fourth special grounds of the motion for a new trial complain of the charge of the court upon prescriptive title, and are without merit.
5. The fifth ground sets out a colloquy between the court and counsel for the defendant as to certain questions asked by plaintiff’s counsel. At the conclusion of this colloquy counsel for plaintiff changed his question, and asked: “Who exercised rights of ownership over this twelve acres up to that fence there?” Answer: “We did.” Byrd, the husband of the plaintiff, was on the stand. It does not appear that at the time this evidence was given there was any objection urged to it, and for that reason there was valid assignment of error.
6. The ninth ground of the motion complains of the failure of the court to tell the jury that the issue was as to the dividing line between the twelve-acre tract of plaintiff and the one hundred and eighty-five-acre tract of defendant. By reference to the charge, the court fully explained to the jury the contentions of each party; and besides, there was no written request for any such charge.
7. The tenth ground of the motion complains that while the plaintiff was on the stand she was asked by her counsel, “Was. there ever any administration of Mr. Thompson’s estate?” to which she answered, “No.” Whereupon counsel for defendant stated that there was better evidence than that; whereupon the court stated that it thought not. The statement of counsel for defendant was not an objection as appears of record, and all that appears is the statement quoted above as to the objection. This evidence was immaterial, and was not necessary to plaintiff’s case. The plaintiff in error cites the decision in Gornto v. Wilson, 141 Ga. 597 (81 S. E. 860). That was a suit by heirs to recover real estate, and the burden was upon them to show that there was no administration. It was a part of their case. Whether or not there was an administration of the estate of the deceased husband would make no difference if the plaintiff had been in possession of the property since his death, and especially if she held it as a year’s
8. In the eleventh ground of the motion it appears that counsel for the defendant objected to certain evidence as immaterial and irrelevant. It has been ruled by this court that such objection amounts to nothing. Counsel should have stated how it was immaterial and irrelevant, and how it was harmful and hurtful.
9. In the twelfth ground it appears that the defendant offered T. H. Hiker as a witness, and examined him as follows: Question: “Where did you live in reference to this land in controversy?” Answer: “I suppose it was something like a quarter.” Q.:“How long have you lived there?” A.: “Born and raised there.” Q.: “Do you know where the line is?” A.: “I know where the line is between me and him.” Q.: “Well, between him and Shirley?” A.: “I know the east and west line; the creek was always considered the line.” On motion of counsel for plaintiff this evidence was excluded. It did not appear that this witness had ever been in possession of the property, or who it was that considered the creek the line; besides, the defendant had shown by a number of other witnesses, who pretended to know, this same evidence. In any event, if the exclusion of this evidence was error, it is not a sufficient ground to set aside this verdict. The plaintiff alleged in her petition that she was the owner of twelve acres of the southeast corner of land lot No. 1, in the 23d district and second section of Gordon County, and had been in possession thereof for more than twenty years. The defendant in his answer denied this paragraph, but further answered: “That he does own and is in possession of a certain tract of land; that the line between this defendant and the tract on which plaintiff lives is the run of Salacoa Creek; that the plaintiff lives across the creek from this defendant’s land, but that the plaintiff does not own the full and complete title to said land, but only an interest therein, according to information, but that no part of tract in possession of said plaintiff extends across said creek; that this defendant and his predecessors in title have owned and claimed said land up to the said creek and been in. possession thereof for a long term of years.” The defendant put in evidence a deed from Holtzclaw to Shirley, the defendant, dated December 4, 1911, conveying the following described lands: “All that parcel of land lying and being in the
In a controversy between two persons respecting a boundary, it is competent to show that a person under whom the defendant claims, and the then proprietor of the adjoining tract of land, had an understanding and agreement as to the dividing line in question, and that the coterminous proprietors acted upon this understanding, and treated it as settling the question of boundary. Wood v. Crawford, 75 Ga. 734; Cleveland v. Treadwell, 68 Ga. 836; Miller v. McGlaun, 63 Ga. 436. And where each of two coterminous proprietors recognizes the ownership of the other, and that the tract of each is bounded by that of the other, the ascertainment of the true line between them fixes the extent of their respective tracts. Phillips v. O’Neal, 87 Ga. 727 (13 S. E. 819).
Judgment affirmed on the main hill of exceptions; cross-hill dismissed.