Roberson v. Downing Co.

Atkinson, J. This is the second appearance of this case in this court. See Roberson v. Downing Co., 120 Ga. 833. The suit is to quiet title to land, for injunction, and other relief. Upon the trial in the court below, when the evidence was all in, and both sides had announced closed, the court directed a verdict in favor of the plaintiff, as follows: “We, the jury, find for the plaintiff the premises in dispute and costs of suit and cancellation of deeds of the defendants as prayed, and injunction be made permanent.” The defendant moved for a new trial, upon the general grounds, and upon the ground that “the court erred in directing a verdict for the plaintiff without allowing counsel for defendant to argue said case before the jury, there being issues.of fact upon which the jury should have been permitted to pass.” The defendants in the court below are plaintiffs in error here, and in their briefs say: “There is but [176] one question in this ease. Did the court commit error in deciding as a matter of law that the defendants were bound by the statute of prescription?” In support of their side of the question, they insist that the evidence does not show such character of possession as. would authorize the court to hold as a matter of law that a prescription had been established, and, if the possession had been of.sucli character, there was a breach in the continuity of the possession which would defeat prescription; and in connection with the contentions already named, it was insisted that there was evidence tending to show that the possession for a part of the time necessary to complete the prescription was not in the right of the claimant, but adverse to such right; that, the evidence npt being mandatory upon the points named, the issues should have been submitted to the jury, and not determined by the court as a matter of law. No’ other proposition being discussed in the brief for the plaintiffs in error, under repeated rulings of this court, any other proposition which may be involved in the motion for new trial will be treated as abandoned and will not be considered. The report of the case in 120 Ga. 833, sufficiently states the muniments of title relied upon by the plaintiffs as color of title. On the question of possession thereunder, the evidence fairly construed shows, that, by the location and operation of a sawmill on the lot in dispute, Armitage was in actual possession of a part of the tract under his deed to the whole for about one year, commencing soon after his purchase, March 11, 1881, and ending with his sale to McDonough, Feb. 21, 1882; that McDonough continued this sawmill possession for five or six years, and sold to Burbage, Jan. 25, 1887. When McDonough moved his sawmill away, Lary & Co., under Burbage, McDonougMs grantee, worked the entire lot for turpentine purposes, and a few months after McDonough had moved his mill, Lary, in 1887, as tenant of Burbage, moved upon the lot to live, and, in addition to the turpentine operations, cultivated a field of about 20 acres on the lot. From that time until the suit was brought'in April, 1902, Lary, and after his death the family of Lary, lived on the lot and cultivated the fields, and for a part of the time worked the trees for turpentine purposes, and sold cord wood and exercised other acts of dominion. For a part of the time, other tenants of the plaintiff worked the trees for turpentine. It appears that the possession of Lary, and after Ms death the possession of his family, was as ten [177] ants of the plaintiff and his predecessors in title. Mrs. Lary testified that she never claimed the lot adversely to the plaintiff’s claim, but it does appear that at one time she consulted counsel with a view of setting up a claim; also that she returned the property for taxes in her own name. She testifies affirmatively that she did not set up a claim, and that she returned the lot and paid taxes under an arrangement with Burbage, which she did in consideration of being allowed the use of the lot. There was no evidence tending to controvert the explanation given by Mrs. Lary ás to why she paid the. taxes. We may mention the points made by counsel in their briefs in the reverse order. There is not sufficient evidence to impeach the possession maintained by the plaintiff by the tenancy of Mrs. Lary. She unquestionably entered as tenant of the plaintiff’s predecessor, and never moved away so as to be in a position to set up adverse title. Her idea of claiming adversely was evidently abandoned when she consulted counsel. She testifies affirmatively and without contradiction that she never claimed title. Her explanation as to why she returned and paid taxes, being reasonable and uncontradicted, must be taken as true. A verdict based upon this evidence, impeaching the possession of the plaintiff, could not stand, and it was not erroneous for the court, without the intervention of a jury, to dispose of the point. Under the evidence there was no substantial breach in the continuity of possession. The only breach possible would be for the term of a few months in-1887, following the removal of McDonough’s mill. But Mrs. Lary, after testifying about the removal of this mill, says: "Then Lary & Co. commenced turpentine operations on the lot, and in a few months they moved on the lot to live.” McDonough’s sale was in January, 1887. The turpentine operations immediately followed, and they moved on the lot in October of the same year, all being done under Burbage. If it be conceded that .turpentine operations must be submitted to the jury to determine whether they amount to adverse possession, it does not follow that they may not be sufficient as a matter of law to indicate an intention not to abandon an adverse possession previously commenced. Even in the absence of the turpentine operations, the interval between the time of the removal of McDonough and the entry of Lary by actual residence was not so great as to raise the presumption of an abandonment of the possession. There was, therefore, no evidence by which a verdict finding [178] a breach in the continuity of possession could have been sustained, and the court upon that point did not err in directing a verdict. Leaving out turpentine operations, 'the possession was by actual occupancy of a part of the land by Atmitage, then by McDonough in operating their sawmill, and afterwards’ by Lary by actual residence and by cultivating fields upon the tract. This actual possession of a part of the tract under color of title will be construed to extend to the limit of the tract as specified in the deed. It is not controverted that this character of ]iossession was maintained; and it follows as a matter of law that there was possession of the whole tract. As to the character of possession, there was nothing in the case to be submitted to the jury, and upon that point the court did not err ih directing the verdict. The possession being of the character prescribed by law, and there being no breach in the continuity, or impeachment of the good faith, and the same having been maintained for the requisite period, all of which being affirmatively established by uncontroverted ’evidence, the court did not, for any of the reasons assigned, err in directing -a-verdict for the plaintiff. Judgment affirmed. All the Justices concur, except Fish, O. J.-, absent.