O.C.G.A. § 44-4-5 (2019)

Annotations

Cross references. - Removal or destruction of survey monuments, § 44-1-15.

Law reviews. - For annual survey of zoning and land use law, see 58 Mercer L. Rev. 477 (2006). For annual survey of real

property law, see 58 Mercer L. Rev. 367 (2006). For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009).

JUDICIAL DECISIONS Analysis General Consideration Landmarks

Lines Courses and Distances General Consideration Section applies to suits for land. - This statute, laying down the rule for determining a disputed land line between coterminous owners, should have equal application in a suit for land where a recovery depends upon the determination of such a disputed land line. Jackson v. Sanders, 199 Ga. 222, 33 S.E.2d 711 (1945) (see O.C.G.A. § 44-4-5). Rule applies to descriptions in deeds and to ejectment. - Recognized rule of law to the effect that in determining boundaries to premises in dispute, courses and distances must yield to permanent physical monuments, natural or artificial, has application to descriptions contained in deeds, and has been applied to description of land in dispute in actions in ejectment. Land v. Moore, 201 Ga. 661, 40 S.E.2d 729 (1946). Section applies where ejectment action centers on boundary. - When the principal issue in an ejectment case is the determination of a land lot line, it was not error for the trial judge to charge the jury the rules prescribed in former Code 1933, §§ 85-1601 and 85-1602 (see O.C.G.A. §§ 44-4-5 and 44-4-6). Wood v. Elliott, 114 Ga. App. 612, 152 S.E.2d 595 (1966). Section inapplicable to boundaries between town lots. - To charge jury in language of 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) was error in an ejectment action to determine boundaries between two town lots, since these sections apply to rural land boundaries only. Standard Oil Co. v. Altman, 173 Ga. 777, 161 S.E. 353 (1931). Rules for ascertaining location of disputed land lines generally. - In processioning and marking anew established lines, the processioners were 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). Rules to be followed by processioners in ascertaining the location of disputed land

lines and by juries in the trial of processioning cases are set forth by 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). Hackle v. Bowen, 89 Ga. App. 799, 81 S.E.2d 294 (1954). When equity jurisdiction exercised. - Section provides an adequate remedy at law by processioning for ascertaining and settling the location of boundary lines between coterminous landowners. But where the boundaries between two adjacent parcels of land, even when held by their respective owners under purely legal titles, have become confused and obscure, equity has, from an early period, exercised a jurisdiction to ascertain and settle them if, in addition to a naked confusion of the controverted boundaries, there is involved in the litigation some other equity which has arisen from the conduct, situation, or relations of the parties. Nottingham v. Elliott, 209 Ga. 481, 74 S.E.2d 93 (1953). When in doubt construction favorable to grantee prevails. - If all other means of ascertaining the true construction of a deed fails, and a doubt still remains, that construction is rather to be preferred which is most favorable to the grantee. Holder v. Jordan Realty Co., 163 Ga. 645, 136 S.E. 907 (1927). Completion of boundary by connecting corners and landmarks. - Even though the course and extent of the line itself may not have been actually marked out upon the earth’s surface, if there should exist a sufficient number of 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 suffice to complete the boundary, it would be the duty of processioners, in accordance with the provisions of former Civil Code 1910, § 3820 (see O.C.G.A. § 44-4-5), so to ascertain, mark, and establish the boundary, respecting always the rights had under actual possession as defined by former Civil Code 1910, § 3822 (see O.C.G.A. § 44-4-7). Cosby v. Reid, 21 Ga. App. 604, 94 S.E. 824 (1918); Dodson v. Knox, 89 Ga. App. 760, 81 S.E.2d 211 (1954). Court of Appeals may establish line but must follow Supreme Court. - It is the duty

General Consideration (Cont’d) of the Court of Appeals to follow the precedents and the ancient landmarks of the law as declared by the Supreme Court in tracing landmarks. If the line leading from precedent to a particular point has not been marked, the Court of Appeals may establish what they find to be a straight line, but have no power to overrule a line set up by the Supreme Court. Minor v. City of Atlanta, 7 Ga. App. 817, 68 S.E. 314 (1910). When processioning proceeding is not res judicata. - When the processioners find only three of five corners and then, by the use of certain dimensions, place iron pins at two other points in order to connect up the dividing lines by and between the parties, and do not establish anew the lines as required by the processioning law, the processioning proceeding is not res judicata. Purcell v. C. Goldstein & Sons, 166 Ga. App. 547, 305 S.E.2d 10 (1983). Cited in Cleveland v. Treadwell, 68 Ga. 835 (1882); Tucker v. Roberts, 151 Ga. 753, 108 S.E. 222 (1921); Cherokee Ochre Co. v. Georgia Ochre Co., 162 Ga. 620, 134 S.E. 616 (1926); Blackwell v. Houston County, 168 Ga. 248, 147 S.E. 574 (1929); Brown v. Hester, 169 Ga. 410, 150 S.E. 556 (1929); Booker v. Booker, 41 Ga. App. 380, 153 S.E. 94 (1930); Long v. Robertson, 41 Ga. App. 712, 154 S.E. 464 (1930); Smith v. Brinson, 43 Ga. App. 248, 158 S.E. 454 (1931); Branon v. Hunter, 177 Ga. 759, 171 S.E. 291 (1933); Reynolds v. Kinsey, 50 Ga. App. 385, 178 S.E. 200 (1935); Pearre v. Wilkinson, 54 Ga. App. 638, 188 S.E. 553 (1936); Smith v. Bailey, 183 Ga. 869, 189 S.E. 905 (1937); Warsaw Turpentine Co. v. Fort Barrington Club, 185 Ga. 540, 195 S.E. 755 (1937); Hayes v. Wilson, 60 Ga. App. 731, 5 S.E.2d 97 (1939); Kinsey v. Avans, 196 Ga. 428, 26 S.E.2d 787 (1943); Veal v. Barber, 197 Ga. 555, 30 S.E.2d 252 (1944); Stewart v. Latimer, 197 Ga. 735, 30 S.E.2d 633 (1944); Barron v. Chamblee, 199 Ga. 591, 34 S.E.2d 828 (1945); Fortson v. Caudell, 74 Ga. App. 276, 39 S.E.2d 579 (1946); Rodgers v. Beavers, 76 Ga. App. 16, 45 S.E.2d 74 (1947); Anthony v. Wright, 76 Ga. App. 425, 46 S.E.2d 194 (1948); Bostick v. Yaughn, 79 Ga. App. 180, 53 S.E.2d 223 (1949); Ledford v. Hill, 82 Ga. App. 299, 60 S.E.2d 555 (1950); Jarrard v. Wildes, 87 Ga. App. 30, 73 S.E.2d

116 (1952); Milligan v. Hale, 88 Ga. App. 70, 76 S.E.2d 29 (1953); Dodson v. Knox, 89 Ga. App. 760, 81 S.E.2d 211 (1954); Railey v. Heath, 92 Ga. App. 123, 88 S.E.2d 194 (1955); McGinty v. Interstate Land & Imp. Co., 92 Ga. App. 770, 90 S.E.2d 42 (1955); White v. Gordon, 213 Ga. 730, 101 S.E.2d 759 (1958); Dixon v. Dixon, 97 Ga. App. 54, 102 S.E.2d 74 (1958); Woodcock v. Rayonier, Inc., 97 Ga. App. 133, 102 S.E.2d 93 (1958); Brantley v. Thompson, 102 Ga. App. 355, 116 S.E.2d 300 (1960); Wood v. Hamilton, 109 Ga. App. 608, 137 S.E.2d 61 (1964); Goodson v. Pope, 112 Ga. App. 71, 143 S.E.2d 779 (1965); Warren v. Anderson, 221 Ga. 533, 145 S.E.2d 536 (1965); Patterson v. Bailey, 114 Ga. App. 659, 152 S.E.2d 427 (1966); Johnson v. Franklin, 232 Ga. 227, 206 S.E.2d 19 (1974); Akins v. Tucker, 132 Ga. App. 66, 207 S.E.2d 625 (1974); Freeman v. Nelson, 138 Ga. App. 697, 227 S.E.2d 475 (1976); Frost v. Williamson, 239 Ga. 266, 236 S.E.2d 615 (1977); Forte v. Lewis, 241 Ga. 109, 243 S.E.2d 38 (1978); Banks v. Myrick, 149 Ga. App. 252, 253 S.E.2d 873 (1979); Finley v. Sutton, 245 Ga. 813, 267 S.E.2d 252 (1980); Page v. Guin, 187 Ga. App. 143, 369 S.E.2d 517 (1988); Efstathiou v. Sanders, 189 Ga. App. 470, 376 S.E.2d 413 (1988); Lynburn Enters., Inc. v. Lawyers Title Ins. Corp., 191 Ga. App. 710, 382 S.E.2d 599 (1989). Landmarks Plat may be considered together with landmarks. - In a processioning case, the processioners have the right to consult the plat and consider the plat together with the physical landmarks. Dally v. Arnold, 91 Ga. App. 395, 85 S.E.2d 808 (1955). Natural boundaries are most conclusive evidence. - Although courses and distances shall be resorted to in the absence of higher evidence, natural boundaries shall be taken as the most conclusive evidence. Varnell v. O’Bryant, 198 Ga. 352, 31 S.E.2d 661 (1944). Natural boundaries have greater weight than artificial ones. Thompson v. Hill, 137 Ga. 308, 73 S.E. 640 (1912). Monuments control over courses and distances. - When a deed conveying a tract of land locates the boundaries by physical monuments, natural or artificial, such as public roads, and by courses and distances, and there is a discrepancy between the monu-

ments and the courses and distances, the location by monuments will prevail. Barrett v. Dodd, 206 Ga. 840, 59 S.E.2d 395 (1950). When the calls of a deed are for artificial monuments as well as courses and distances, if there is a conflict between the two, the courses and distances must be disregarded. Atlanta Trailer Mart, Inc. v. Ashmore Foods, Inc., 247 Ga. 254, 275 S.E.2d 336 (1981); Morris v. Monroe, 165 Ga. App. 788, 302 S.E.2d 704 (1983). Reference in a deed to the ‘‘center line of a ditch’’ prevailed over an inconsistent provision in the deed giving metes and bounds for property lines because the ditch was a natural landmark. Kobryn v. McGee, 232 Ga. App. 754, 503 S.E.2d 630 (1998). Artificial monument that had existed since 1885 is sufficient to serve as a fixed monument which controls the course and distance called for by a survey. Smith v. Willoughby, 207 Ga. 91, 60 S.E.2d 155 (1950). Whether street used as monument existed at time of deed is jury question. - When a deed conveying a tract of land locates the boundaries both by monuments and by distance, and there is a discrepancy between the two, the location by monuments will prevail. If in such a case one of the monuments is a street, and there is, in a suit brought to recover the land, a dispute as to whether there was, at the date of the deed, such a street in existence, this question should be submitted to a jury under proper instructions. Hammond v. George, 116 Ga. 792, 43 S.E. 53 (1902). Evidence sufficient to support plaintiff ’s boundaries. - In a boundary line dispute filed pursuant to O.C.G.A. § 23-3-61, the trial court properly entered judgment on a jury verdict in favor of the plaintiffs, two landowners, and against their neighbor, and then denied the neighbor a new trial, or alternatively a judgment notwithstanding the verdict as: (1) the boundary line indicated on a plat reflecting the locations of monuments on the parcel owned by two landowners complied with the monuments referenced in the original warranty deed; and (2) the neighbor agreed to a special verdict form allowing the jury to find that the plat submitted by the two landowners accurately and sufficiently showed the true boundary line. Dover v. Higgins, 287 Ga. App. 861, 652 S.E.2d 829 (2007), cert. de-

nied, 2008 Ga. LEXIS 237 (Ga. 2008). For jury charge as to section where large rock claimed to be boundary corner, see Butler v. Lovelace-Eubanks Lumber Co., 37 Ga. App. 74, 139 S.E. 83 (1927). Lines Lines are certain which may be made certain through key to identification in record. - Upon ascertaining the location of either terminus as alleged in the protest, the course of the line toward the other terminus being shown, the latter could be also determined under this statute. That is certain which may be made certain. In such a case the line is sufficiently definite, where a key to the identification is shown in the record. Price v. Gross, 148 Ga. 137, 96 S.E. 4 (1918); Boyd v. Sanders, 148 Ga. 839, 98 S.E. 490 (1919); McCollum v. Thomason, 32 Ga. App. 160, 122 S.E. 800 (1924) (see O.C.G.A. § 44-4-5). Line established merely by compromise or by taking from one in one place and giving to the other is not shown to be the true line. Hackle v. Bowen, 89 Ga. App. 799, 81 S.E.2d 294 (1954). Iron pin markers as evidence of line that runs between the markers. - In a statutory proceeding involving location of a boundary line, evidence that iron pin markers were at each end of the line is some evidence that the line originally lay in a straight line between the markers. Railey v. Heath, 92 Ga. App. 123, 88 S.E.2d 194 (1955). Charge that established, marked line, though crooked, shall not be overruled. - In a suit for injunction and other relief, where one of the issues for determination is the location of an original line of a particular lot of land, but when there is no pleading or evidence to authorize a charge to the jury that an established, marked line, though crooked, shall not be overruled; it is not error to refuse a request for instruction containing this language, even though the entire charge as requested was based on this statute. Davis v. Guffey, 196 Ga. 816, 27 S.E.2d 689 (1943) (see O.C.G.A. § 44-4-5). Iron pipes, fence line, hedgerow, and acquiescence in boundary was sufficient evidence for court. - While no natural landmarks established the disputed boundary between property belonging to the parties, other evidence did, including iron pipes

Lines (Cont’d) marking the corners of the property, a fence line, a hedgerow, and acquiescence in the boundary, and the failure in the landowners’ deed to reference the land lot where the disputed acreage was did not determine the result; sufficient evidence supported the trial court’s findings as to the location of the boundary line. Sledge v. Peach County, 276 Ga. App. 780, 624 S.E.2d 288 (2005). Sufficient evidence presented that old fence line established boundaries. - Trial court properly entered a judgment against plaintiffs in a quiet title action and established the boundary lines between the parties by use of an old fence line that had been embedded in trees and was marked by bent axles since all of the parties, except for plaintiffs, and all of the testifying experts, including plaintiffs’ expert, testified that the old fence line established the boundary lines. Blair v. Bishop, 290 Ga. App. 721, 660 S.E.2d 35 (2008), cert. denied, 2008 Ga. LEXIS 793 (Ga. 2008). Evidence sufficient to support boundary established by trial court. - Applying the rules for determining disputed boundary lines, while no natural landmarks established a boundary between multiple parcels of land, it was undisputed that a spring was not on the neighbor’s land to whom the first parcel had been deeded by the original

common grantor, and as there was some evidence from which the factfinder could establish measurements for the neighbor’s parcel, the boundary line so established was supported by the evidence. Gibson v. Rustin, 297 Ga. App. 169, 676 S.E.2d 799 (2009). Courses and Distances Absent higher proof, courses and distances are resorted to under this statute. Addison v. Edwards, 138 Ga. 623, 75 S.E. 648 (1912) (see O.C.G.A. § 44-4-5). Course and distance, depending for their correctness on a great variety of circumstances, are constantly liable to be incorrect. Differences in the instrument used, and in the care of surveyors and their assistants, lead to different results. Howell v. United States, 519 F. Supp. 298 (N.D. Ga. 1981). Courses and distances occupy the lowest grade, instead of the highest, in the scale of evidence as to identity of land. Howell v. United States, 519 F. Supp. 298 (N.D. Ga. 1981). Courses and distances yield to natural, visible, and ascertained objects. Accordingly, when in the description of land in a deed known monuments are referred to as boundaries, those monuments must usually govern, although neither courses nor distances nor the computed contents correspond therewith. Thompson v. Hill, 137 Ga. 308, 73 S.E. 640 (1912).

RESEARCH REFERENCES ALR. - Distance as determined by straight line or other method, 54 ALR 781. Rights as between grantees in severalty of lots or parts of same tract, where actual measurements vary from those given in deeds or indicated on the map or plat, 97 ALR 1227. Sufficiency of description in standing timber deed or contract, 35 ALR2d 1422.

Description with reference to highway as carrying title to center or side of highway, 49 ALR2d 982. Boundaries: measurement in horizontal line or along surface or contour, 80 ALR2d 1208. Fence as a factor in fixing location of boundary line - Modern cases, 7 ALR4th 53.