148 Ga. 616 | Ga. | 1918
Lead Opinion
It is insisted that the vice contained in the instruction of the court is in the employment of the conjunctive “and” instead of the disjunctive “or,” so as to make the rule of agreed boundaries apply only when the line is not only unascertained and uncertain, but also disputed; whereas the rule should have been made applicable where the line is uncertain, or unascertained, or disputed. In many adjudicated cases, as well as in the text-books and encyclopedias the words “uncertain,” “unascertained,” and “disputed” are treated as practically synonymous. These words are often used apparently on the theory that the use of either one or all of them leads to the same result. In 9 C. J. 234, it is said that “according to some decisions there must not only be doubt and uncertainty in respect of the true division line, but there must also be an actual dispute or controversy between the parties. In other decisions in which this question has been directly presented and passed on, the contrary view is maintained.” In a footnote to the text a .number of cases are cited pro and con. In this State the precise question has not been ruled upon.' The language of the decisions, however, conveys the idea that the words under consideration have been used as substantially synonymous. A line which is uncertain is unascertained; and while the coterminous owners may be content to accept the status quo and leave the line unestablished, such a course would be contrary to human nature. A boundary line, in point of fact, is in dispute where the respective owners are not in agreement as to its location. It is not necessary that they should be in actual controversy in or out of court. In the ease of Osteen v. Wynn, 131 Ga. 209, 214 (62 S. E. 37, 127 Am. St. R. 212), it is said: “Where there is room for controversy as to the location of a dividing line, the coterminous proprietors . . may orally agree upon the line: and
The second and third headnotes require no elaboration.
Judgment affirmed.
Dissenting Opinion
dissenting. F. B. Walker owned the east half of lot 271 and the west half of lot 236, in the 12th district of Brooks county. Walker and his father, under whom he held, owned the land for nearly forty years. The boundary line between the two adjoining tracts was uncertain, indefinite, and unascertained. Walker sold the east half of lot 271 to Shiver (the defendant in the court below). When he sold the east half of lot 271 to Shiver, he and Shiver procured the services of a surveyor and established the line between the two tracts. The line thus surveyed and marked was, by parol agreement, expressly accepted by both parties as the dividing line. The agreement was accompanied by possession to the agreed line, and was otherwise duly executed. There was never any dispute between Walker and Shiver. Apparently the agreed line as marked by the surveyor was in fact the original divisional line between the two lots of land, according to the belief and information of both Walker and Shiver. Subsequently Walker sold the west half of lot 236 to one Hall. Hall in turn Bold to Webb, repurchased from Webb, and finally conveyed the tract to H. I. and A. F. Hill (plaintiffs in the-court below). The trial judge, in instructing the jury, charged as follows: “Where the boundary line between coterminous proprietors—adjoining landowners—is unascertained, unsettled and not agreed to between the parties, and is disputed, and the parties get together and by agreement settle the dispute . . by establishing fences or marking trees, or the like, and then follow up such agreement by each possessing the land up to the line, . . such an agreement operates to settle and establish the line.” The jury having returned a verdict for the plaintiffs, the defendant excepted to this charge upon the ground
