Henderson v. Walker

Hill, J. (After stating the foregoing facts.) The special exceptions in the motion for new trial are to two excerpts from the charge of the court, and on alleged errors in failing to charge the jury certain principles therein stated. ■ The court charged the jury: “In this connection and as setting forth a rule or principle of law proper for your consideration in this case, I charge you the following: where an agreement establishing a dividing line between adjoining properties is followed by acquiescence and possession, the parties are concluded by their agreement; and when the acquiescence and possession have continued for a period of time prescribed by the statute of limitations, a perfect title by adverse possession is acquired. And if adjoining proprietors have deliberately erected monuments or fences or made improvements on a line between their lines upon the understanding that it is the true line, it will amount to a practical location.” Movant contends that this charge was error for the reasons: (a) Because it confuses the rule of law which provides that acquiescence for seven years by acts or declarations of adjoining-land owners, which establishes a dividing line, with that rule of law which provides that an executed agreement between the parties will also establish a dividing line. (b) Because there was no evidence that any agreement had ever been en [861] tered into between the coterminous owners which had become executed. (c) Because if the charge undertakes and was intended to cover the law relating to seven years acquiescence by acts or declarations of adjoining-land owners, the same is incomplete in that the word “acquiescence” is used and left to stand alone, without going further, as is done in the statute, and adding, “by acts or declarations of adjoining-land owners.” (d) Because the charge fails to state the period of time in which acquiescence as defined by the statute will establish a dividing line between parties. We are of the opinion that the excerpt from the charge of the court, when taken in connection with the general charge, is not open to the criticisms made against it. Answering the last criticism on the charge first, we find from reading the general charge of the court that he instructed the jury, “If you find this fence was established by the predecessors in title of these parties, and that the fence was on a line agreed upon (and as to that the court expresses no opinion), and that the fence has been acquiesced in by both parties for more than seven years, it would become the legal line between the parties.” We are also of the opinion that the other criticisms of the charge are without merit. Taylor Graham, a brother of Columbus Graham, deceased, testified: “Mr. Walker was in possession of this land in 1907. I know when the line was run between my brother’s land and Mrs. Walker’s land, but I cannot say what date it was; there was a fence put there shortly after that time. I saw Columbus Graham at various times during his lifetime, and he was satisfied about the line; he never did complain about the fence there. . . I knew Uncle Nas Henderson in his lifetime. I heard Columbus Graham make the statement that if Uncle Nas ran that line he would be satisfied with it. I was there when they ran the line part of the way, but I did not go further than the corner of mine. I showed them where the corner was; they dug down and and found the corner post. Columbus Graham said that he was plumb satisfied. Mr. Walker was the one who dug down and found the post. Mr. Melvin Paulk and Mr'. Nas Henderson were there. The fence has been there ever since 1906, ever since Mr. Walker has been in this county.” Major Brunt, a witness for the plaintiff, testified: “I knew Columbus Graham in his lifetime. I married his brother Elias’s daughter. I know where the fence is, separating the land of Mrs. Walker from the land now owned [862] by D. R. Henderson. I helped to survey the line which Hncle Hum sold to Major Fuller; the fence was agreed to be the original line, so far as I know; he said it was the agreed line. He told me when we run the line out for Major Fuller, he sold him some land and Major put up a barn there, and old man Lum told him the barn was too far on his land, and it was agreed to about it, and old man Lum and I went to run the line out for Major. He never had contended that Mr. Walker’s fence was on his land; he always said that was the line. I understood him to say Mr. Has Henderson ran that line for him.” So, it will be seen that the charge is not open to the criticism that there was no evidence that any agreement had ever been entered into between the coterminous owners, which had become executed. Civil Code (1910), § 3821; Osteen v. Wynne, 131 Ga. 209 (3, a, b) (62 S. E. 37, 127 Am. St. R. 212); Farr v. Woolfolk, 118 Ga. 277 (45 S. E. 230); Bunger v. Grimm, 142 Ga. 448 (7) (83 S. E. 200, Ann. Cas. 1916C, 173); Gornto v. Wilson, 141 Ga. 597 (2) (81 S. E. 860); Zachery v. Hudson, 138 Ga. 85 (74 S. E. 768). Exception is taken to the following charge of the court: “If yon find this fence was established by the predecessors in title of these parties, and that the fence was on the line agreed upon (and as to that the court expresses no opinion), and that the fence has been acquiesced in by both parties for more than seven years, it would become the legal line between the parties.” This charge, considered in connection with the general charge, is not open to the criticism that it confuses the law of establishing lines between coterminous owners by agreement with the statute which provides that seven years acquiescence by acts or declarations of adjoining-land owners will establish a line. Nor is it open to the objection that it does not correctly state the law’ which provides that acquiescence for seven years by acts or declarations of adjoining-land owners shall establish a dividing line, and that the court used the word “acquiescence” without restricting it to “acts or declarations of adjoining landowners.” Exceptions to the failure of the court to charge certain principles of law show no error, inasmuch as they are not adapted to the facts of the case. The evidence authorized the verdict and the court did not err in refusing a new trial. Judgment affirmed. All the Justices concur.