O.C.G.A. § 44-4-3 (2019)

Annotations

JUDICIAL DECISIONS Processioners’ return and surveyor’s plat filed with a probate court was not a conclusive adjudication of a boundary question, but was only evidence; res judicata was inapplicable, and a trial court’s judgment holding that the evidence presented overcame a processioners’ return was affirmed. Sacks v. Jordan, 265 Ga. App. 723, 595 S.E.2d 571 (2004). Subject matter of this statute is the effect to be given to a plat made by the surveyor under the superintendence of the processioners, and filed as provided by law in subsequent disputes between the coterminous landowners. Darnell v. Betty’s Creek Baptist Church, 230 Ga. 461, 197 S.E.2d 714 (1973) (see O.C.G.A. § 44-4-3). Processioners and surveyor are to retrace existing lines. - 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. Palmer v. Jackson, 82 Ga. App. 702, 62 S.E.2d 366 (1950); Hackle v. Bowen, 89 Ga. App. 799, 81 S.E.2d 294 (1954). All that is required of the processioners and the surveyor is that the lines be traced and marked anew so as to locate the lines with some definiteness. Boatright v. Tyre, 112 Ga. App. 179, 144 S.E.2d 471 (1965). Power and authority of processioners extends to retracing and establishing old lines, already existing. Jarrard v. Wildes, 87 Ga. App. 30, 73 S.E.2d 116 (1952). Function of processioners is only to run and mark anew land lines which at some previous time were located and established. Boatright v. Tyre, 112 Ga. App. 179, 144 S.E.2d 471 (1965). Processioners only have authority to mark anew a dividing line in order to reestablish a dividing line which was previously established and recognized as such by the adjoining owners. Processioners have no authority to locate any other line. Davis v. Terrell, 70 Ga. App. 478, 28 S.E.2d 590 (1944). Processioners must find the old lines already established; 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 have no authority to establish new lines. - Processioners and the county surveyor have no authority under the law to run and set up a line where the processioners think the line ought to be, 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); Hackle v. Bowen, 89 Ga. App. 799, 81 S.E.2d 294 (1954). Processioners cannot establish new lines. Jarrard v. Wildes, 87 Ga. App. 30, 73 S.E.2d 116 (1952). To ascertain and fix new lines is not within the power or functions of processioners. Their vocation is to run and mark lines which at some previous time were located and established. Processioners seek and find lines already existing, but cannot bring into existence any which have not been before designated on the surface of the earth. Milligan v. Hale, 88 Ga. App. 70, 76 S.E.2d 29 (1953). Processioners cannot bring into existence lines which have not been theretofore designated on the surface of the earth, or establish a line as shown merely in a deed or plat. Boatright v. Tyre, 112 Ga. App. 179, 144 S.E.2d 471 (1965). No duty to indicate physical marks along line. - Law does not impose a duty on the surveyor to indicate the existence of any physical marks along the line adopted by the processioners as the true line. Norman, Timmons & Co. v. Smith, 131 Ga. 69, 61 S.E. 1039 (1908). Sufficiency of plat. - Plat is sufficient if so made that lines can be definitely located. Norman, Timmons & Co. v. Smith, 131 Ga. 69, 61 S.E. 1039 (1908). Duty to reestablish lines from existing corners or landmarks. - If there are enough physically established corners or landmarks, the mere connecting of which by straight lines, or from which the projecting of the courses and distances shown by the plat, would be enough to complete the boundary, it is the duty of the processioners to ascertain, mark, and establish the lines, respecting always the rights had under actual possession. Howell v. United States, 519 F. Supp. 298 (N.D. Ga. 1981). Line and corner markers not required. - Nothing in the law sets forth any require-

ment respecting the placing of line or corner markers or requires that such markers be placed on any particular interval or spacing. Boatright v. Tyre, 112 Ga. App. 179, 144 S.E.2d 471 (1965). No requirement that whole line be drawn or walked. - Nothing in the law requires that every foot or inch of a line be drawn on the face or surface of the earth, or that the processioners or a majority of the processioners actually walk over or along the entire line without omitting any interval. Boatright v. Tyre, 112 Ga. App. 179, 144 S.E.2d 471 (1965). Plat should be clearly identified. - Plat should not only be certified by the surveyor, but should be clearly identified as the one in question. Reynolds v. Kinsey, 50 Ga. App. 385, 178 S.E. 200 (1935). Plat need not be attached to return. - It is unnecessary, however, that the plat should be attached to the return, even though the return may refer to the plat as ‘‘attached hereto,’’ if it is sufficiently verified and filed with the ordinary (now judge of the probate court) within the statutory 30 days. Reynolds v. Kinsey, 50 Ga. App. 385, 178 S.E. 200 (1935). Applicability of rules of court to surveys. - Rules of court do not apply to surveys made by the county surveyor acting with processioners under an application of the owner of land to the processioners to have the lines around the same surveyed and marked anew. Caverly v. Stovall, 134 Ga. 677, 68 S.E. 442 (1910). Burden of proof where return protested. - When a protest is filed to the return of processioners, the burden is on the applicant to make out a prima facie case. Davis v. Terrell, 70 Ga. App. 478, 28 S.E.2d 590 (1944). Admissibility of return and plat. - Return of the processioners and the plat of the surveyor are admissible in evidence in the trial of an issue formed by a protest to the processioners’ return. Darnell v. Betty’s Creek Baptist Church, 230 Ga. 461, 197 S.E.2d 714 (1973). Processing proceedings establish prima facie case. - In an action of complaint for land, a certified copy of a plat made by the county surveyor in a processioning proceeding under the statute is prima facie, not conclusive, evidence of the true line between

adjoining landowners. Hearn v. King, 69 Ga. 751 (1882); McGraw v. Crosby, 129 Ga. 780, 59 S.E. 898 (1907); Chambers v. Netherland, 145 Ga. 52, 88 S.E. 545 (1916). Introduction of the processioning proceedings, including the notice, plat, etc., properly certified, is sufficient to establish a prima facie case. Davis v. Terrell, 70 Ga. App. 478, 28 S.E.2d 590 (1944). Applicant for processioning makes out a prima facie case for the boundary line found by the processioners by filing their return and plat, without further proof. Wood v. Hamilton, 109 Ga. App. 608, 137 S.E.2d 61 (1964). Which authorizes verdict sustaining return in absence of other evidence. - Return of the processioners and the surveyor’s plat serve to make out a prima facie case, and, in the absence of any other evidence, would authorize a verdict sustaining the return. Darnell v. Betty’s Creek Baptist Church, 230 Ga. 461, 197 S.E.2d 714 (1973). Admissibility of surveyor’s testimony. - Where the location of the dividing line between the parties litigant is relevant to the matter in controversy, the testimony of the county surveyor that the surveyor ran the line pending the suit, that defendant was present when this was done, and that a certain map of the survey is correct, is admissible evidence for the plaintiff, notwithstanding the surveyor also testifies that the surveyor’s work was done in the course of processioning the land in accordance with law. Gunn v. Harris, 88 Ga. 439, 14 S.E. 593 (1892). Must consider possession. - In a boundary line dispute, when the processioners did not consider possession or use of the property in preparing the processioners’ return, the entry of a directed verdict against the return of the processioners was proper. Elder v. Merritt, 204 Ga. App. 163, 418 S.E.2d 774 (1992). Charging section in trial of protest to return. - This statute is inapplicable to the issue before the court formed by a protest to the processioners’ return, but giving this statute in charge is not prejudicial to the losing party, because in the trial of an issue formed by a protest, the processioners’ return is to be deemed prima facie correct. Georgia Talc Co. v. Cohutta Talc Co., 140 Ga. 245, 78 S.E. 905 (1913); McCollum v.

Thomason, 32 Ga. App. 160, 122 S.E. 800 (1924) (see O.C.G.A. § 44-4-3). Parties may submit plat reflecting court’s findings. - Where the line described by the court’s order is supported by the evidence adduced at trial, but it is not sufficiently specific to serve as a processioning line, an order permitting either party to submit a plat reflecting the findings of the court is appropriate and promotes judicial economy and efficiency. 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). Judgment binding on protestant. - When a protest is filed and a judgment is entered thereon in superior court, the judgment is binding on the protestant and the protestant’s privies. Holmes v. Blount, 245 Ga. 757, 267 S.E.2d 228 (1980).

Cited in Howland v. Brown, 92 Ga. 513, 17 S.E. 806 (1893); Martin v. Pattillo, 126 Ga. 436, 55 S.E. 240 (1906); Montgomery v. Robertson, 134 Ga. 66, 67 S.E. 431 (1910); Garrett v. Massee & Felton Lumber Co., 134 Ga. 442, 67 S.E. 1036 (1910); Stovall v. Caverly, 139 Ga. 243, 77 S.E. 29 (1913); Chambers v. Netherland, 145 Ga. 52, 88 S.E. 545 (1916); Tucker v. Roberts, 151 Ga. 753, 108 S.E. 222 (1921); Fortson v. Caudell, 74 Ga. App. 276, 39 S.E.2d 579 (1946); 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); McCann Lumber Co. v. Hall, 77 Ga. App. 455, 49 S.E.2d 150 (1948); Irby v. Raley, 88 Ga. App. 807, 78 S.E.2d 72 (1953).