Phelps v. Huff

448 S.E.2d 64, 214 Ga. App. 398, 94 Fulton County D. Rep. 2814, 1994 Ga. App. LEXIS 881
CourtCourt of Appeals of Georgia
DecidedAugust 12, 1994
DocketA94A1069
StatusPublished
Cited by3 cases

This text of 448 S.E.2d 64 (Phelps v. Huff) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phelps v. Huff, 448 S.E.2d 64, 214 Ga. App. 398, 94 Fulton County D. Rep. 2814, 1994 Ga. App. LEXIS 881 (Ga. Ct. App. 1994).

Opinion

Andrews, Judge.

Mr. and Ms. Phelps, Mr. and Ms. Osborne, and McElroy, plaintiffs below and owners of property abutting that of Ms. Huff, defendant below, appeal from the judgment entered on the jury’s verdict in Huff’s favor regarding their joint boundary.

Viewed in favor of the verdict, the evidence was that all of the land involved was originally part of a 275-acre farm purchased by F. N. Carter in 1935. The farm consisted of seven 40-acre Land Lots. The land was divided among Carter’s seven children in 1954, with Sarah Stubbs, the daughter of Carter and mother of Huff, receiving Land Lot 98 and Endicott, the predecessor in title of plaintiffs, receiving Land Lot 97, adjoining Land Lot 98 on the west. Endicott was a granddaughter of Carter and the niece of Sarah Stubbs.

In 1957, Endicott and Stubbs arranged to have the boundaries of Land Lots 97 and 98 surveyed by Robinson, the Paulding County surveyor. Robinson came to the property on April 29, 1957 and met En-dicott and Stubbs. He surveyed Land Lot 97, including the line forming the common boundary of that lot and Land Lot 98. Robinson showed Endicott and Stubbs the iron pins he set in the corners forming the ends of that common line and, about midway up the line, a pin showing where the line crossed Willow Springs Road, which went [399]*399through both lots. Robinson testified that “those ladies both agreed on the line. They was satisfied with it before I left there.”

On April 30, Robinson returned to survey the remaining three lines of Land Lot 98. Several of the Stubbs children, including William Stubbs, Huff’s brother, and his wife Louise Stubbs came to the property to walk the lines with Robinson. Some of the men and boys carried iron pins and wooden stakes for Robinson and placed the stakes and pins every 100 feet on the lines until they ran out. The family members walked the entire perimeter of Land Lot 98 with Robinson. The two plats reflecting these surveys were recorded by Robinson on May 2, 1957.

In 1965, Ms. Stubbs signed a contract allowing timber to be cut from Lot 98. In connection with the timber cutting, Georgia Kraft had a survey run which showed the common boundary with Lot 97 to the east of Robinson’s line.

In 1972, when Huff was preparing to build a home on part of Land Lot 98, Stubbs wrote a letter on her behalf to Endicott requesting that Endicott sign a boundary line agreement which reaffirmed the original corners of the joint line between Land Lots 97 and 98, per Robinson’s survey. Endicott, an attorney, refused to sign the agreement, responding that she thought such an agreement unnecessary because “[a] boundary line is a boundary line, and that is it.”

Mr. Huff placed part of a telephone pole inside the iron pin at the southwest corner of Land Lot 98 to remark the original line because the old pin was damaged.

In 1982, the Huffs had the small interior lot in Land Lot 98 containing their home surveyed by Cruselle. That plat reflects a distance of 200.97 feet to the western boundary of Land Lot 98, which is the Robinson line.

In 1984, Endicott was preparing to sell lots out of Land Lot 97 and wrote to real estate agent Lee, now deceased, on February 18 concerning a proposed listing of her property with Lee’s employer, Cherokee Properties. In that letter, Endicott discussed her awareness of a line dispute and states that, in 1957 when Robinson surveyed Land Lot 97, “he also surveyed lot number ninety-eight, which at that time belonged to Mrs. Bill Huff’s mother, Mrs. Sarah Stubbs, who was my aunt. She and I were both present at the time of the survey and we both agreed with Robinson as to the property lines and accepted his survey as correct. The same agreeing with the one on record in the courthouse at that time.”1

In 1984, the Camps bought the southwestern portion of Land Lot 98 from Huff, including the Huff home. The Camps’ survey was done [400]*400on May 14,1984 by LSI Surveys and used a line to the east of Robinson’s as the western boundary of their portion of Lot 98.

Surveyor Knight was asked by the real estate company to survey the outer boundaries of Land Lot 97 in preparation for Endicott’s subdividing and sale of portions of this lot. On his plat, dated May 25, 1984, Knight located the common boundary line with Land Lot 98 approximately 35 to 45 feet to the east of Robinson’s line, cutting off approximately an acre from Huff’s property and including it in En-dicott’s. Knight did not reference the Robinson line or the Georgia Kraft line, indicating only the line he surveyed. His line was consistent with the Georgia Kraft line.

On June 10, 1984, Cruselle, now working for LSI, surveyed all of Land Lot 98 for the four Stubbs children who had split up Sarah Stubbs’ property after her death. In this survey, Cruselle reflected two western lines of Land Lot 98, indicating the Robinson line and what Cruselle said in his opinion was the true line, to the east of the Robinson line. This second line was the Georgia Kraft-Knight line.

Endicott sold that portion of Land Lot 97 abutting Land Lot 98 to the Phelpses, Osbornes, and McElroy. They made claims to the disputed area between the Robinson and Knight lines which were first addressed by Huff in 1988 when her attorney wrote letters claiming the Robinson line as the true line. A driveway was blazed and concrete poured on the disputed tract by the Phelpses and Osbornes. When Huff had the land resurveyed and marked consistently with the Robinson line and began preparations to build a fence, plaintiffs obtained a restraining order and initiated this litigation. Huff counterclaimed for damages due to the cutting of some of her trees and the fact the driveway would have to be removed. The verdict was for Huff on the issue of location of the line and for plaintiffs on Huff’s counterclaim.

1. Appellants’ first enumeration is that the court erred in allowing into evidence defendant’s exhibit no. 23, Endicott’s letter to Lee, quoted above, “which contained hearsay.”

Lee was deceased at the time of trial and Endicott was not competent to testify due to age and ill health. Lee’s employer testified that he had located the letter in his files. Huff identified the signature on the letter as Endicott’s.

Prior to trial, appellants filed a motion in limine contending that defendant’s exhibit no. 23 was hearsay or in violation of former Ga. Code Ann. § 38-1603 (“Deadman’s statute,” which was revamped by Ga. L. 1979, p. 1261). The latter ground was not raised when the letter was introduced into evidence and is not argued here.

Although other bases for objecting to the letter are argued in the brief, we consider only the hearsay ground which is contained in the enumeration of error. Batten v. Chrysler Corp., 211 Ga. App. 173, 175

[401]*401(2) (438 SE2d 647) (1993).

OCGA § 24-3-13 provides that “[traditional evidence as to ancient boundaries and landmarks shall be admissible in evidence, the weight to be determined by the jury according to the source from which it comes.” Such evidence is an exception to the hearsay rule. Gilman Paper Co. v. James, 235 Ga. 348, 351 (219 SE2d 447) (1975); Deaton v. Swanson, 196 Ga. 833, 837 (3, 4) (28 SE2d 126) (1943); Waddell v. Cole, 138 Ga. App.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pulte Homes v. Adele Simerly
Court of Appeals of Georgia, 2013
Pulte Home Corp. v. Simerly
746 S.E.2d 173 (Court of Appeals of Georgia, 2013)
Time Warner Entertainment Co. v. Six Flags Over Georgia, LLC
537 S.E.2d 397 (Court of Appeals of Georgia, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
448 S.E.2d 64, 214 Ga. App. 398, 94 Fulton County D. Rep. 2814, 1994 Ga. App. LEXIS 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phelps-v-huff-gactapp-1994.