Cosby v. Reid

94 S.E. 824, 21 Ga. App. 604, 1918 Ga. App. LEXIS 423

• Court: Court of Appeals of Georgia
• Decided: January 22, 1918
• Docket: 8732
• Status: Published

Opinion

Jenkins, J.

(After stating the foregoing facts.)

1. Under the rule as expressed in the first headnote, the processioners, in the absence of higher and controlling evidence accepted by them to the contrary, were authorized to run, mark, and establish the. disputed line, when such, could be done, by means of courses and distances in accordance with the plat, projected from actual physical landmarks. We think the charge of the court relative to the want of authority on the part of processioners to establish new lines, but limiting their power.to the establishment and marking of lines already existing, was sufficiently clear/

2. While one portion of the excerpt from the charge complained of in the third ground of the amendment to the motion for a new trial may not be within itself as complete and clear as it might have been, yet the charge, when considered in connection with the instructions given just preceding and immediately following the portion complained of, and when taken as a whole, makes it perfectly clear that if in the opinion of the jury the evidence showed an established marked line, that line should be taken to the exclusion of courses and distances. Nor do we think that the jury could possibly have been misled by the excerpt from the charge complained of in the last ground of the motion for a new trial. The judge had repeatedly given in charge the provisions of section 3822 of the Civil Code (1910), as to the controlling effect of seven years adverse possession, and had amplified and emphasized this mandatory rule of law, to which rule special reference was in fact again made in connection with the excerpt actually complained of, and without any qualification such as was made in the case of Williams v. Giddens, 132 Ga. 342 (64 S. E. 64). The verdict sustaining the return of the processioners was authorized by the evidence, and, the' trial judge being satisfied therewith, no sufficient reason appears why it should be set aside.

Judgment affirmed.

Wade, G. J., and Lulce, J., concur.