Railey v. Heath

88 S.E.2d 194, 92 Ga. App. 123, 1955 Ga. App. LEXIS 540

• Court: Court of Appeals of Georgia
• Decided: June 6, 1955
• Docket: 35630
• Status: Published

Opinions

Quillian, J.

A. B. Heath (whom we will refer to as the applicant) applied to the processioners of a district in Berrien County to trace and mark the line anew between his lands and those of Zack Railey, Allie Railey Miller, Sara Railey Brogdon, Willie Railey, Allie Railey Mixon, and Mamie Railey Gaskins (whom we will refer to as the protestants). To the return of the processioners the protestants filed a protest, and the ordinary returned all the papers, including the plat made by the surveyor, with said protest, to the Clerk of the Superior Court of Berrien County. The trial resulted in a verdict for the applicant. The protestants filed a motion for new trial on the general grounds. The motion was denied, and the protestants excepted. '

On the trial the applicant introduced in evidence the return of the processioners together with the plat made by the county surveyor. The applicant testified that he did not purchase his lands until 1944, and did not know the exact location of the disputed line. To refute the contentions of the protestants that the disputed line had been acquiesced in by his predecessors in title by allowing the protestants and their predecessors in title to cut timber up to the line, he testified merely that he did not see any evidence of the timber having been cut and that the timber on his side of the line was about like that on the protestants’ side.

One of the processioners testified in the applicant’s behalf. He gave an extensive explanation of how the processioners arrived at the location of the line marked by them. He testified that they ran a line practically straight from an iron pin marking the corner at one end of the line to another at the other end of it, and for a portion of the way along the line they followed a fence that had’been “weeded” to by the proprietors on each side of it, and apparently had stood long enough to be considered a line acquiesced in by both parties.

The protestants’ witnesses testified in considerable detail that the line that lay along the course claimed by the protestants was the true line, and that the proprietors on each side of it acquiesced in its location for more than seven years, each cutting-timber on their respective sides and up to the line for more than fifteen years. Some of the witnesses testified that they helped survey the line in 1911; and while the plat made at that time by the surveyor showed the line as contended by the applicant, it did not correctly show the line’s location.

Where it is contended that a line was acquiesced in for more than seven years by contiguous landowners, allowing timber to be cut up to the line is one way in which acquiescence by conduct of the parties is shown. Swinson v. Jones, 66 Ga. App. 598 (18 S. E. 2d 646).

However, we are not prepared to hold that the evidence did not make an issue for the jury. The evidence that the iron-pin corners were at each end of the line was some evidence that the line originally lay in a straight line between them. Code § 85-1601. The fence referred to in the testimony of the processioners was some evidence that the line had been acquiesced in by the applicant and the protestants themselves.

The witnesses in the case, except the processioner, all appear to have been interested in its result. The applicant testified in his own behalf. For the protestants one of their number and their kinfolk testified for them. The fact that the processioner was without interest could be considered by the jury.

Judgment affirmed.

Gardner, P. J., Townsend, Carlisle, and Nichols, JJ., concur. Felton, C. J. dissents.