O.C.G.A. § 44-4-2 (2019)

Annotations

JUDICIAL DECISIONS Purpose of processioning. - Processioning was designed to prevent controversies concerning boundaries of land between adjacent owners, by having the lines around an entire tract surveyed and marked, which must be done in order to make the lines between adjacent owners prima facie correct and admissible in evidence without further proof. When it is apparent on the face of the papers that the processioners have not complied with this requirement, the processioners’ return is without legal effect under the processioning laws. Watson v. Bishop, 69 Ga. 51 (1882). Established lines, not new ones, are to be fixed and determined; the location of lines, not as the lines ought to be, but as the lines actually exist, is to be sought. It is not the duty of the processioners to adjudicate land titles. Amos v. Parker, 88 Ga. 754, 16 S.E. 200 (1892); Bowen v. Jackson, 101 Ga. 817, 29 S.E. 40 (1897); Crawford v. Wheeler, 111 Ga. 870, 36 S.E. 954 (1900); Cosby v. Reid, 21 Ga. App. 604, 94 S.E. 824 (1904); Wheeler v. Thomas, 139 Ga. 598, 77 S.E. 817 (1913); Boyce v. Cooke, 140 Ga. 360, 78 S.E. 1057 (1913); Elkins v. Merritt, 20 Ga. App. 737, 93 S.E. 236 (1917); Walker v. Boyer, 121 Ga. 300, 48 S.E. 916 (1918); McAlpin v. Thompson, 29 Ga. App. 495, 116 S.E. 64 (1923); Mattox v. DeLoach, 32 Ga. App. 454, 123 S.E. 624 (1924). It is not the function of processioners to ascertain and fix new lines; the processioners’ duty is only to run and mark

anew those which can be taken as having been formerly located and established. Pearre v. Wilkinson, 181 Ga. 619, 183 S.E. 626 (1936); Jarrard v. Wildes, 87 Ga. App. 30, 73 S.E.2d 116 (1952). Duty of processioners appointed under authority of this statute is to survey and mark anew established lines as the lines actually exist, and not as the lines ought to have been laid out originally. Hall v. Browning, 71 Ga. App. 694, 32 S.E.2d 126 (1944); Rodgers v. Beavers, 76 Ga. App. 16, 45 S.E.2d 74 (1947) (see O.C.G.A. § 44-4-2). It is the plain duty of processioners to survey and trace and mark anew existing land lines, that is, old lines already established; and processioners have no right, power, or authority to make or fix new dividing lines between adjoining landowners. Georgia Marble Co. v. Voyles, 74 Ga. App. 312, 39 S.E.2d 488 (1946). Where a boundary line is sufficiently definite in every way to establish a true dividing line between the parties, the processioners’ attempt to run a straight line, which traversed the established line, is invalid since processioners have no authority under the law to do other than to mark anew established lines as those lines actually exist; processioners have no right to run a line where processioners think the line should be in order to make the line straight. Bostick v. Yaughn, 79 Ga. App. 180, 53 S.E.2d 223 (1949).

Under the law of processioning, it is the duty of the processioners, together with the county surveyor, to retrace and mark anew established lines, not to run new lines. Processioners have no authority under the law to run and set up a line where the processioners think the line ought to be, but where in fact no line existed or had been established before the processioners’ survey. Palmer v. Jackson, 82 Ga. App. 702, 62 S.E.2d 366 (1950). Processioners must find the old lines already established, and processioners have no right, power, or authority to make or find new dividing lines between adjoining landowners. Watkins v. Chappell, 173 Ga. App. 819, 328 S.E.2d 223 (1985). Processioners cannot ignore long-established markers and actual possession. - Processioners staked out a property line in an apparent attempt to establish the line where the line ought to have been, in strict compliance with titles and plats. In doing so, the processioners ignored long-established markers and the protesting landowners’ actual possession of land under a claim of right as evidenced by the landowners’ fences and cultivation of land. Thus, the court did not err in finding against the return of the processioners. Page v. Guin, 187 Ga. App. 143, 369 S.E.2d 517 (1988), aff ’d, 190 Ga. App. 357, 378 S.E.2d 736 (1989). Processioners bound by §§ 44-4-5, 44-4-6, and 44-4-7. - In processioning and marking anew established lines, the processioners are bound by the rules which the law prescribed. These general principles were set out in former Code 1933, §§ 85-1601, 85-1602, and 85-1603 (see O.C.G.A. §§ 44-4-5, 44-4-6, and 44-4-7). Hall v. Browning, 71 Ga. App. 694, 32 S.E.2d 126 (1944); Rodgers v. Beavers, 76 Ga. App. 16, 45 S.E.2d 74 (1947). Whole tract must be marked. - Where lands are to be processioned, it is necessary to survey and mark the entire tract of land belonging to and possessed by the owner; it is not sufficient to survey and mark one lot alone, held by grant from the state, it being the lot where the line is uncertain or disputed. Martin v. Cauthen, 77 Ga. 491 (1886). Failure to mark whole tract is grounds for dismissal. - When it appeared that the lines around the entire tract of the applicant were not surveyed and marked anew as required by law, it was proper to dismiss the entire

proceeding, on motion of the protestants. Gillis v. Taylor, 127 Ga. 676, 56 S.E. 992 (1907). Land having county line as boundary. - Lot of land having for the lot’s boundary a land-lot line which is also a divisional line between counties, is not, on account of such coincidence, excluded from the operation of law relating to the processioning of land. Caverly v. Stovall, 143 Ga. 705, 85 S.E. 844 (1915). Location of a county line under former Civil Code 1910, § 472 (see O.C.G.A. § 36-3-20 et seq.) did not nullify a prior judgment in a processioning case. Caverly v. Stovall, 143 Ga. 705, 85 S.E. 844 (1915). Application in writing required. - Phrase ‘‘shall apply to the processioners,’’ as used in this statute, authorizing proceedings for the processioning of land, necessarily refers to an application in writing, and it follows that without such an application there can be no lawful proceedings under this statute. Ballard v. Haines, 115 Ga. 847, 42 S.E. 218 (1902) (see O.C.G.A. § 44-4-2). When there was no written application, the trial court did not err in sustaining a motion to dismiss the case, based on the ground, among others, of the insufficiency of the proceedings. Ballard v. Haines, 115 Ga. 847, 42 S.E. 218 (1902). There is presumption that proper application in writing was made to processioners by the applicant before the processioners acted in the premises. Caverly v. Stovall, 134 Ga. 677, 68 S.E. 442 (1910). When, on the trial of an issue made by a protest filed by adjoining owners to the return of the processioners, there is no proof that an application in writing was made, but there is a recital in the return of the processioners that the processioners were applied to by the applicant to trace and mark anew the lines around a certain tract of land, the presumption is that a proper application in writing was made to the processioners by the applicant. Philpot v. Wells, 69 Ga. App. 489, 26 S.E.2d 155 (1943). Procedure for application. - It is proper that one application be addressed to all three processioners; but the proceedings will not be unlawful if the applicant addresses a separate application to each of the processioners. Caverly v. Stovall, 134 Ga. 677, 68 S.E. 442 (1910).

It is sufficient if applications are sent to processioners and received by the processioners through the United States mail. Caverly v. Stovall, 134 Ga. 677, 68 S.E. 442 (1910). Original application for processioning is admissible in evidence along with the return of the processioners and the plat of the surveyor, and the jury may consider the application along with the other evidence. Palmer v. Jackson, 82 Ga. App. 702, 62 S.E.2d 366 (1950). Testimony following loss of application. - After proof of the loss of the application was made to the court it was not error to admit in evidence the testimony of the processioners that the application was made in writing and complied with the requirements of the statute. McCool v. Wilcher, 27 Ga. App. 96, 107 S.E. 365 (1921). Effect of death of applicant. - Where application is made by a life tenant who dies, the suit may be continued in the name of the persons succeeding to the life tenant’s interest, the remaindermen. McCool v. Wilcher, 27 Ga. App. 96, 107 S.E. 365 (1921). Sufficiency of notice. - When the notice served on an adjoining landowner sufficiently indicates that a boundary line between the landowner’s land and that of the applicant was to be marked anew, such notice need not necessarily contain such a minute and particular description as is contained in a deed, and it is not subject to the objection that the notice fails to indicate the line to be marked anew. McAlpin v. Thompson, 29 Ga. App. 495, 116 S.E. 64 (1923). Failure to give adjoining landowner notice as required by law would not work a dismissal of the proceeding as to the adjoining landowners who had been given the required notice, but such proceeding would not be binding on an owner not having due notice thereof. Pearre v. Wilkinson, 54 Ga. App. 638, 188 S.E. 553 (1936). No provision for further notice where processioning postponed. - If, on the day appointed, severity of the weather necessitates postponement of processioning, this statute provides for no further notice. Phillips v. Chapman, 78 Ga. 163, 1 S.E. 427 (1886) (see O.C.G.A. § 44-4-2). Processioning proceedings will not be held necessarily void and subject to dismissal on motion because on the face of the return

it does not appear that an owner of adjoining land was notified of the day to which the matter was postponed. Garrett v. Massee & Felton Lumber Co., 134 Ga. 442, 67 S.E. 1036 (1910). Verbal notice of postponement of processioning sufficient. - Where written notice is given of the time fixed for tracing a line by processioners, and, on assembling at that time, for some reason the processioning cannot then be done, and the matter is postponed to a later day, verbal notice of such postponement may be given to the landowners interested, and further written notice is not required. Garrett v. Massee & Felton Lumber Co., 134 Ga. 442, 67 S.E. 1036 (1910). Time fixed by the written notice may be postponed, and merely verbal notice of the new date fixed may be given to the interested landowners. Reynolds v. Kinsey, 50 Ga. App. 385, 178 S.E. 200 (1935). Waiver of irregularity in notice by landowner. - Even though written notice may incorrectly state the time when the lines are to be run and marked, and only oral notice be given to a landowner as to the time to which the meeting of the processioners is postponed (more than ten days after such written and oral notice to the landowner), the landowner will be deemed to have waived any irregularity in the landowner’s notice, where the landowner meets with the processioners and the surveyor at the time fixed, files a protest to the processioners’ return and to the plat of the surveyor, and participates in a trial in the superior court on the merits of the landowner’s protest. Reynolds v. Kinsey, 50 Ga. App. 385, 178 S.E. 200 (1935). Superior court jurisdiction over protest. - In order to give superior court jurisdiction over protest to return of processioners, it is necessary that a majority of the processioners with the surveyor shall have actually traced and marked the disputed boundary lines. Reynolds v. Kinsey, 50 Ga. App. 385, 178 S.E. 200 (1935). When there was no county surveyor the processioners may, under the provisions of former Civil Code 1910, §§ 603 and 604 (see O.C.G.A. § 36-7-13), specially engage any competent person, a citizen of the county, to perform the processioners’ duties, provided such person was first properly sworn or, in

default of such person, the county surveyor of an adjoining county may officiate. Tisinger v. Ellerbee, 37 Ga. App. 391, 140 S.E. 522 (1927). Failure to file application with plat. - When the application to the processioners was duly made in writing and acted upon by the processioners, who made the processioners’ report and filed the report with the plat of the surveyor as required by law, the fact that the application was not also filed with the report, because lost, did not furnish a good ground for dismissal of the proceedings. Caverly v. Stovall, 134 Ga. 677, 68 S.E. 442 (1910); McCool v. Wilcher, 27 Ga. App. 96, 107 S.E. 365 (1921). Return and plat identical to previous invalid return and plat. - Where a majority of the processioners meet with the surveyor and actually trace and mark the disputed boundary lines, the proceedings are not invalidated by the fact that the lines as fixed in the return and plat may be the same as those in a previous return and plat, which was invalid because of insufficient notice to the parties, or that the last survey may be a resurvey of the lines as formerly surveyed. Reynolds v. Kinsey, 50 Ga. App. 385, 178 S.E. 200 (1935).

Dismissal for failure to include tenants in common as parties. - When it appeared from an application for processioning that the applicants and other persons, not named in the application, were tenants in common of the land around which it was sought to have the lines surveyed and marked anew, it was error to overrule a motion of a protestant to dismiss the application on the ground that the other tenants in common were not parties thereto. Carmichael v. Jordan, 131 Ga. 514, 62 S.E. 810 (1908). Charge to jury in language of section held not misleading. - See McCollum v. Thomason, 32 Ga. App. 160, 122 S.E. 800 (1924) (see O.C.G.A. § 44-4-2). Cited in Smith v. McCranie, 182 Ga. 588, 186 S.E. 191 (1936); Russell v. Radford, 76 Ga. App. 302, 45 S.E.2d 705 (1947); Anthony v. Wright, 76 Ga. App. 425, 46 S.E.2d 194 (1948); Edenfield v. Lanier, 77 Ga. App. 535, 48 S.E.2d 777 (1948); Hackle v. Bowen, 89 Ga. App. 799, 81 S.E.2d 294 (1954); Railey v. Heath, 92 Ga. App. 123, 88 S.E.2d 194 (1955); Oliver v. Irvin, 105 Ga. App. 844, 125 S.E.2d 695 (1962); Shipp v. Rakestraw, 241 Ga. 8, 243 S.E.2d 52 (1978).

OPINIONS OF THE ATTORNEY GENERAL In processioning proceedings, county surveyor and processioners have no authority to make and establish new lines, but their duty is to trace and mark anew old lines or those that can be taken as having been formerly

located and established; it is the duty of the processioners and county surveyor in a processioning proceeding to follow this statute. 1965-66 Op. Att’y Gen. No. 65-108 (see O.C.G.A. § 44-4-2).