Summerville Macadamized Graded or Plank Road Co. v. Baker

68 Ga. 412

• Court: Supreme Court of Georgia
• Decided: February 15, 1882
• Status: Published

Opinion

Jackson, Chief Justice.

In this record one clear error of law appears. The case is an action of ejectment brought to recover a parcel of land in the possession of defendant. Plaintiff and defendant were tenants in common of the same parcel of land, and it was partitioned between them many years ago, the parties conveying to each other the several halves thereof. A short time ago the defendant entered on an unenclosed strip within the line claimed by it, but also within the line claimed by the plaintiff; so that the issue was, what is the true line agreed upon when the lot was divided? The jury found for the plaintiff, and defendant being denied a new trial excepted, and assigns error on all the grounds of the motion; One of these grounds is that the court erred in charging the jury that the plaintiff’s line between the two halves of the lot began at the center of defendant’s way acquired for its road-track, and not from the southern edge of that way, and that the verdict establishes the line from the center and not from the southern extremity or edge of the way of fifty feet width.

The action of ejectment is brought to recover the possession of the land. The effect of the ruling and of the verdict therefore is to put the plaintiff in possession of land, up to the center of defendant’s strip of fifty feet. Defendant was in peaceable possession of this, its roadbed, many years before it became a tenant in common with plaintiff of the tract which was partitioned between them, and the dividing line of which tract was in dispute. This lot was bought by the parties, while the defendant alone owned its road-bed of fifty feet. No part of this fifty feet ever was partitioned between them, because no part of it was ever owned by them in common, so as to subject it to the remedy and writ of partition or to the agreement to partition it. But the effect of the charge and of the verdict is to throw into the part belonging to the plaintiff some of the road-bed which never belonged to the two parties in common, and therefore never could have been divided.

Such ruling is error; and the verdict, in so far as it extends plaintiff’s right in any line surveyed over the southern edge of defendant’s road-bed of fifty feet, and encroaches thereon one inch, is contrary to law, and must be set aside.

It is immaterial whether the fee be in the company to this road-bed — the absolute property forever and for all purposes — or not. If it be but the right to enjoy the possession and the exclusive possession of this road-bed, no other person can dispossess the company as long as its possession continues for the use of the roadbed in accordance with its charter and title ; and no action of ejectment can turn it out and put another in any part of that road-bed. The case is too plain for argument, too clear for question. It became so much so in the argument before this court that counsel for plaintiff disclaimed that such was the claim of their client or the effect of the verdict.

2. Inasmuch, however, as both parties seem agreed that further controversy would cease if the line found by the jury be established as the true dividing line as to the direction in which it ran, to divide the track but not to encroach on the road-bed, and as it is desirable in view of public policy, perhaps in saving the expense of another long trial as well as in terminating litigation as soon as possible, we forbear to go further in the case than to decide this point. We reverse the judgment on this ground, and direct that a new trial be granted, unless the plaintiff shall disclaim all right under the verdict to encroach on the road-bed of fifty feet, but agree to start the dividing line from the southern edge of the road-bed and run thence south to the other terminus at the mouth of the gully.

Judgment reversed on terms.