Westberry v. Devereaux

Marshall, Justice. The plaintiff-appellant sued the defendant-appellee to enjoin the defendant from trespassing upon the plaintiffs property. The defendant answered, denying that he was trespassing on the plaintiffs property; the defendant filed a counterclaim, requesting that the land line between the parties’ property be established in accordance with the defendant’s deed to the property. The parties consented to entry of a pretrial order, which authorized each of them to make an independent survey of the land lines in question and authorized each party to use the plats of the surveys "for the purpose of showing the parties’ respective contentions.” Following the rendition of a verdict in favor of the defendant, entry of judgment thereon, and the denial of the plaintiff’s motion for new trial on the general grounds, the plaintiff appeals to this court, arguing that the verdict is unsupported by the evidence. More specifically, the plaintiff argues that the plat of the defendant’s survey does not conform to the defendant’s deed to the property. Therefore, the plaintiff argues that the judgment, which establishes the land line in accordance with the survey plat, is unauthorized. The plaintiff makes this argument notwithstanding the fact that she failed to object to the trial judge’s charge to the jury that if it found for the defendant, the land line would be established in accordance with his survey plat. In any event, the transcript of the surveyor’s testimony shows that if the land line were established in accordance with the defendant’s deed rather than the plat, it would actually enlarge the defendant’s property. Furthermore, the defendant argued at trial that he had [471] acquired title to the disputed property through adverse possession, and there is evidence to substantiate this argument. Under these circumstances, the judgment must be affirmed. E.g., Anthony v. Garrett, 236 Ga. 485 (224 SE2d 347) (1976). Submitted February 23, 1979 Decided April 5, 1979. Albert E. Butler, for appellant. Peyton Miles, for appellee. Judgment affirmed. All the Justices concur.