Opinion
37013.
DECIDED JANUARY 30, 1958.
Processioning. Burke Superior Court. Before Judge Kennedy. October 4, 1957.
H. Cliff Hatcher, for plaintiff in error.
Lewis Lewis, Preston B. Lewis, contra.
1. On the issue here formed by a protest to the return of processioners, the verdict of the jury in favor of the line as found by the processions was supported by some evidence, and there is no evidence which demands a contrary finding.
2. The evidence for the protestant does not demand a finding that he had 20 or more years of public, continuous, exclusive, uninterrupted and peaceable possession of the 27-acre tract in accordance with the line as contended by him, nor does it demand a finding that he had 7 or more years of such possession under a claim of right.
3. The evidence demands a finding that the applicant never knew of the existence of the fence or the claim of the protestant. Accordingly, the protestant was not entitled to a verdict in favor of the line as contended by him on the theory of acquiescence.
DECIDED JANUARY 30, 1958.
Ralph A. Dixon filed an application in the Court of Ordinary directed to the processioners of the 68th District G.M. of Burke County, asking that the boundary lines between his property and that of R. S. Long, adjacent property owner on the north, and E. D. Dixon, adjacent property owner on the east, be surveyed and marked anew. After notice to the adjacent landowners a day was set for the proceedings. Meeting with the processioners and the surveyor at the store of E. D. Dixon, the respective parties were asked to produce whatever documentary evidence they had which would tend to establish the boundaries in question. The applicant and E. D. Dixon each produced a plat of their respective properties which were substantially similar as to the boundary line between the Dixon properties as subsequently found by the processioners. The party then proceeded out to the property and located a beginning point which is not contested by either party. Shortly thereafter it rained, and it was agreed by all parties that the surveyor would come back and tentatively locate the lines in question, and then the processioners would again go over the property with him and arrive at a decision. This was done, and the line was found to be substantially as shown by the plats of the parties and as contended by the applicant, Ralph A. Dixon. The Dixon-Long line was also surveyed and was accepted by the parties, so it is not in controversy in this proceeding. E. D. Dixon, following the return of the processioners adverse to his contentions, filed a protest which was tried in the Superior Court of Burke County. On the trial of the case in that court he introduced another plat which was prepared at his instance from a later survey showing clearly the beginning point and a roughly shaped triangular area measuring approximately 27 acres constituting the disputed area. The line as contended by Ralph A. Dixon and as found by the processioners is a straight line running S 21° 21' W to Briar Creek, this line forming the east side and Briar Creek the base of the triangular area in dispute. The line contended for by E.D. Dixon begins at this point, runs straight to a fence corner, follows the irregular line of the fence for some distance and then is projected straight at S 32° to Briar Creek. The protestant contends, as to this line (a) that it follows the canal and certain marked trees and is the true boundary line; (2) that wherever the line was originally, he took possession of all the land to the fence, which he built and maintained and held in public, continuous, exclusive, uninterrupted and peaceable possession for more than 20 years; (3) that the applicant has acquiesced for more than seven years in his possession to this line, and (4) that the processioners ignored the fence and other evidence of possession and of the existence of the line as he contended it to be.
The jury returned a verdict in favor of the applicant, Ralph Dixon. The protestant filed a motion for new trial on the general grounds, the denial of which is assigned as error.
1. Both parties introduced some evidence in favor of their respective contentions as to the location of the line in the nature of marked trees, other monuments, and reputation in the community. The jury was authorized to find that at the time the line was run the applicant and the protestant each produced a plat for reference by the processioners, and that the line as marked and run was in substantial accordance with these plats, and in accordance with the true dividing line between the properties. The evidence is therefore sufficient to support the verdict unless there was also other evidence which would demand a finding that the line as originally fixed had been changed by prescription, a subsequent agreement, or some other manner in which such line might lawfully have been changed.
2. On the issue of prescription, the protestant relies on evidence that he erected a fence between his property and that of Ralph Dixon, pastured the land east of the fence with cattle for a period of time and with horses on up to the time of the hearing, and cut timber off the area on two occasions. He contends that the processioners entirely ignored the fence and his evidence of possession. There is evidence that the processioners crossed over the fence in running this line because the condition of the fence was such as not to indicate to them that it was a boundary line, and because some strands of barbed wire were merely nailed up from tree to tree zig-zagging in such a way as not to appear to be a line. From the plat made subsequent to the processioners' return and introduced by the defendant in the superior court proceedings, it appears that this fence, which he contends to be the line, commences on land belonging to him which was not claimed by the applicant, proceeds westward a short distance to a point which the protestant contends is on the true boundary line, then angles southwesterly to an old canal and southerly along the canal to a branch, where the fence again turns westerly and follows the branch about 2 1/2 chains along land which is admittedly wholly within the property line of Ralph A. Dixon, and which ends about 12 chains north of Briar Creek, the south property line of both parties. It thus appears that the fence in question neither begins nor ends on the line which the protestant claims it marks as his dividing line, nor does it begin or end on any property corner, landmark, or point contended for by either party. There is also some testimony that the protestant gradually added to the fence from year to year so that not all of it was erected more than 20 years previously as stated by the protestant. The rule to be followed in processioning proceedings is as stated in Code § 85-1603: "Where actual possession has been had, under a claim of right, for more than seven years, such claim shall be respected, and the line so marked as not to interfere with such possession." If the fence had been placed and maintained as a boundary line, as contended by the protestant, under a claim of right for more than seven years, then the processioners would have no right to disregard it. But the fence neither begins nor ends at any definite point and only part of it is claimed to be the boundary line. According to the testimony of the processioners the protestant, at the time they crossed over the fence, did not contend that it was the boundary line, but he was apparently at that time contending the line was in accordance with the original plat he had given them at the store. Further, so far as is shown by the evidence, no line had ever been described in any deed or marked in any manner which would correspond with the straight line projected by the protestant from a point on the fence near the branch and canal southerly to Briar Creek, and such line would have been an entirely new line. "In a processioning proceeding the surveyor and processioners have no authority to make and establish new lines, but their duty is to trace and mark anew old lines or those that can be taken as having been formerly located and established." Pearre v. Wilkinson, 54 Ga. App. 638, 645 ( 188 S.E. 553). Mere use of property for a cattle range, with occasional cutting of timber, is not sufficient to constitute adverse possession. Id, p. 646; McCook v. Crawford, 114 Ga. 337 (2) ( 40 S.E. 225). Before a reversal of this case is authorized on this theory, the evidence must demand a finding that the fencing itself constituted such an inclosure as to give the protestant rights under seven years' possession of the area enclosed. The very nature of the fence here, plus evidence that the protestant made no contention at the time of the proceedings that he had actual possession up to the fence under a claim of right or that he erected and maintained it as a boundary fence, is such that a verdict is not demanded in favor of the protestant on this issue.
3. The evidence does not demand a verdict for the protestant on the theory of acquiescence. The testimony is that the fence in question was in bad repair, was down in some places, and was so inconspicuous as not to be noticed until a person "got right up on it." The applicant testified that he had not lived on the property for years and had no knowledge of its existence. One cannot acquiesce in something of which he has no knowledge. See Bradley v. Shelton, 189 Ga. 696 ( 7 S.E.2d 261); Robertson v. Abernathy, 192 Ga. 694 ( 16 S.E.2d 584).
The verdict of the jury finding in favor of the applicant in the processioning proceedings was not without evidence to support it, for which reason the trial court did not err in denying the motion for new trial on the general grounds.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.