O.C.G.A. § 44-4-6 (2019)

Annotations

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

Law reviews. - For annual survey on law of real property, see 42 Mercer L. Rev. 389 (1990). For annual survey article on real

property law, see 50 Mercer L. Rev. 307 (1998). For annual survey of zoning and land use law, see 57 Mercer L. Rev. 447 (2005). For annual survey of real property law, see 58 Mercer L. Rev. 367 (2006).

JUDICIAL DECISIONS Analysis General Consideration General Reputation as to Ancient Landmarks Acquiescence 1. In General 2. Proof of Agreement and Acquiescence 3. Marking of Line 4. Processioning 5. Jury Instructions General Consideration Acquiescence rule in this statute cannot be used to establish title. Gauker v. Eubanks, 230 Ga. 893, 199 S.E.2d 771 (1973); Burkett v. Hatch, 146 Ga. App. 2, 245 S.E.2d 318 (1978) (see O.C.G.A. § 44-4-6). Acquiescence will not create title to land not described in deeds. - Acquiescence will not establish a divisional line, in disregard of definite boundaries fixed by deeds, and thus operate to create title to lands not embraced by a fair construction within the description in the deeds. Gauker v. Eubanks, 230 Ga. 893, 199 S.E.2d 771 (1973); Burkett v. Hatch, 146 Ga. App. 2, 245 S.E.2d 318 (1978). Applicability to city lot in action to enjoin trespass, establish boundary, and decree title. - In suit by the owners of a lot of land located within the corporate limits of a city against the owner of an adjoining city lot to enjoin a trespass, establish a dividing line, and have title to the land up to the dividing line decreed in petitioners, the provisions of this statute in reference to acquiescence in a dividing line are applicable when there is evidence of acquiescence by declarations and acts of the owners for more than seven years. Thus, the court does not err in charging on acquiescence. Veal v. Barber, 197 Ga. 555, 30 S.E.2d 252 (1944) (see O.C.G.A. § 44-4-6). Section inapplicable to lines already established. - This statute refers to ‘‘establish-

ing’’ and not ‘‘reestablishing’’ a dividing line between adjacent lands, and if the dividing line between coterminous owners is established already, the rule for establishing the line by acquiescence is inapplicable. Horn v. Preston, 217 Ga. 165, 121 S.E.2d 775 (1961) (see O.C.G.A. § 44-4-6). Where boundary between coterminous grantees of a common grantor is definite and ascertainable, this statute has no application. Horn v. Preston, 217 Ga. 165, 121 S.E.2d 775 (1961) (see O.C.G.A. § 44-4-6). Section inapplicable in trespass action where deeds fix definite boundary. - When the description of the respective lots in an action for trespass in the deeds to the plaintiff, and to the defendants’ predecessor in title from a common grantor, fixed a definite and ascertainable boundary line between the respective lots of the plaintiff and the defendants, this statute had no application. Kerce v. Bell, 208 Ga. 131, 65 S.E.2d 592 (1951) (see O.C.G.A. § 44-4-6). Application to ejection action involving town lots is error. - To charge jury in language of former Civil Code 1910, §§ 3820, 3821, and 3822 (see O.C.G.A. §§ 44-4-5, 44-4-6, and 44-4-7) was error in 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). But see Veal v. Barber, 197 Ga.

General Consideration (Cont’d) 555, 30 S.E.2d 252 (1944). For criticism of view that statute applies only to rural land, see Veal v. Barber, 197 Ga. 555, 30 S.E.2d 252 (1944) (see O.C.G.A. § 44-4-6). 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 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). Cited in Glover v. Wright, 82 Ga. 114, 8 S.E. 452 (1882); Camp v. Cochrane, 71 Ga. 865 (1883); Tucker v. Roberts, 151 Ga. 753, 108 S.E. 222 (1921); Tyson v. Anderson, 164 Ga. 673, 139 S.E. 410 (1927); Long v. Robertson, 41 Ga. App. 712, 154 S.E. 464 (1930); Collins v. Rebb, 174 Ga. 250, 162 S.E. 676 (1932); Reynolds v. Kinsey, 50 Ga. App. 385, 178 S.E. 200 (1935); Pearre v. Wilkinson, 54 Ga. App. 638, 188 S.E. 553 (1936); Warsaw Turpentine Co. v. Fort Barrington Club, 185 Ga. 540, 195 S.E. 755 (1937); Crawford v. Taliaferro, 187 Ga. 381, 200 S.E. 776 (1938); McNeal v. Carter, 191 Ga. 441, 12 S.E.2d 332 (1940); Anderson v. Black, 191 Ga. 627, 13 S.E.2d 650 (1941); Watkins v. Sailers, 65 Ga. App. 77, 15 S.E.2d 306 (1941); Barnes v. Avery, 192 Ga. 874, 16 S.E.2d 861 (1941); Hicks v. Cherry, 193 Ga.

4, 17 S.E.2d 60 (1941); Hardy v. Brannen, 194 Ga. 252, 21 S.E.2d 417 (1942); Jackson v. Sanders, 199 Ga. 222, 33 S.E.2d 711 (1945); Pope v. Beasley, 200 Ga. 656, 38 S.E.2d 300 (1946); Hutchins v. McDowell, 202 Ga. 1, 41 S.E.2d 300 (1947); Smith v. Lanier, 202 Ga. 165, 42 S.E.2d 495 (1947); 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); Burgin v. Pickron, 76 Ga. App. 803, 47 S.E.2d 195 (1948); Ledford v. Hill, 82 Ga. App. 299, 60 S.E.2d 555 (1950); Bennett v. Perry, 207 Ga. 331, 61 S.E.2d 501 (1950); Welch v. Haley, 83 Ga. App. 492, 64 S.E.2d 364 (1951); Jackson v. Beameguard, 208 Ga. 773, 69 S.E.2d 772 (1952); Plambeck v. Bailey, 211 Ga. 200, 84 S.E.2d 572 (1954); Banks v. Lane, 92 Ga. App. 155, 88 S.E.2d 312 (1955); Phillips v. Wheeler, 212 Ga. 603, 94 S.E.2d 732 (1956); White v. Gordon, 213 Ga. 730, 101 S.E.2d 759 (1958); Seaboard A.L.R.R. v. Taylor, 214 Ga. 212, 104 S.E.2d 106 (1958); Clay v. Stanfield, 216 Ga. 785, 119 S.E.2d 564 (1961); Durand v. Reeves, 217 Ga. 492, 123 S.E.2d 552 (1962); Little v. Weatherby, 220 Ga. 274, 138 S.E.2d 380 (1964); Green v. Hollaway, 220 Ga. 819, 142 S.E.2d 242 (1965); Howard v. Perkins, 229 Ga. 279, 191 S.E.2d 46 (1972); Young v. Wiggins, 229 Ga. 392, 191 S.E.2d 863 (1972); Carter v. Chambers, 230 Ga. 179, 195 S.E.2d 918 (1973); Carter v. Parson, 230 Ga. 177, 196 S.E.2d 19 (1973); Seaboard Coast Line R.R. v. Carter, 231 Ga. 5, 200 S.E.2d 113 (1973); Akins v. Tucker, 132 Ga. App. 66, 207 S.E.2d 625 (1974); Rutland v. Taylor, 232 Ga. 893, 209 S.E.2d 218 (1974); Wright v. Thompson, 236 Ga. 655, 225 S.E.2d 226 (1976); Frost v. Williamson, 239 Ga. 266, 236 S.E.2d 615 (1977); Banks v. Myrick, 149 Ga. App. 252, 253 S.E.2d 873 (1979); Killingsworth v. Willis, 244 Ga. 662, 261 S.E.2d 613 (1979); Page v. Guin, 184 Ga. App. 143, 369 S.E.2d 517 (1988); Bell v. Owens, 230 Ga. App. 826, 497 S.E.2d 591 (1998); KDS Properties, Inc. v. Sims, 234 Ga. App. 395, 506 S.E.2d 903 (1998); Clark v. Stafford, 239 Ga. App. 69, 522 S.E.2d 6 (1999); Buchheit v. Gillis, 246 Ga. App. 838, 541 S.E.2d 441 (2000); Dover v. Higgins, 287 Ga. App. 861, 652 S.E.2d 829 (2007). General Reputation as to Ancient Landmarks Iron pin corners as evidence of line between pins. - Evidence, in a statutory pro-

ceeding involving location of a boundary line, that iron pin corners are at each end of the line is some evidence that the line originally lay in the straight line between the pins. Railey v. Heath, 92 Ga. App. 123, 88 S.E.2d 194 (1955). Evidence as to what specific persons said about marker is hearsay. - When the evidence offered is not as to the general reputation of a boundary pin or as to the witness’s knowledge of the pin, but is what specific persons said about a specific pin, it is clear that such testimony, being hearsay and inadmissible, is properly ruled out. Collier v. Stokes, 213 Ga. 464, 99 S.E.2d 821 (1957). Acquiescence 1. In General Disputed or uncertain boundaries may be settled by agreement or acquiescence. - There is another well-established rule of law in this state, independent of this statute, that when the boundary line between adjoining landowners is indefinite or unascertained, the coterminous proprietors may, by parol agreement, establish a dividing line, and if the agreement is accompanied by possession to the agreed line, or is otherwise duly executed, such agreement will be valid and binding and the line thus fixed will thereafter control their deeds, and the agreement may be executed by the erection of physical monuments on the agreed line or by the marking of trees indicating the line, when this is done with the knowledge and mutual assent of the adjoining landowners. Swinson v. Jones, 66 Ga. 598, 18 S.E.2d 646 (1942) (see O.C.G.A. § 44-4-6). Where land lines are in dispute, or unascertained, or the parties are uncertain as to their location, adjoining landowners may establish such disputed or unascertained boundaries by one of two methods: (1) by oral agreement, if the agreement is executed by actual possession to the agreed line or by some other method such as marking or laying out the line on the face of the earth and erecting monuments thereon, or (2) by acquiescence for seven years by the acts or declarations of the owners of adjoining lands. Dye v. Dotson, 201 Ga. 1, 39 S.E.2d 8 (1946); Croft v. Beverley, 202 Ga. 210, 43 S.E.2d 93 (1947); Hickox v. Griffin, 205 Ga. 859, 55 S.E.2d 351 (1949); Myers v. Jackson,

87 Ga. App. 161, 73 S.E.2d 220 (1952); Stone v. Jernigan, 214 Ga. 249, 104 S.E.2d 101 (1958); Collins v. Burchfield, 215 Ga. 322, 110 S.E.2d 368 (1959); Peacock v. Boatright, 221 Ga. 661, 146 S.E.2d 745 (1966); Carter v. Wyatt, 113 Ga. App. 235, 148 S.E.2d 74 (1966); Hethcock v. Padgett, 217 Ga. 328, 122 S.E.2d 213 (1961), criticized, United States v. Williams, 441 F.2d 637 (5th Cir. 1971); Cothran v. Burk, 234 Ga. 460, 216 S.E.2d 319 (1975); Kendall v. Curtis, 194 Ga. App. 37, 389 S.E.2d 550 (1989). An unascertained or disputed boundary line between coterminous proprietors may be established by oral agreement, provided such agreement is accompanied by actual possession to the agreed line or is otherwise executed; or such line may be established by acquiescence for seven years, by acts or declarations of the adjoining landowners. Howell v. United States, 519 F. Supp. 298 (N.D. Ga. 1981). There must be actual agreement or acquiescence by acts or declarations. - When there is room for controversy as to the location of a dividing line, the coterminous proprietors, independent of this statute, may orally agree upon the line, and if the agreement is accompanied by possession to the agreed line, or is otherwise duly executed, such agreement will be valid and binding, and the line thus defined will thereafter control their deeds. It is not necessary that possession under the agreed line should be had for 20 years to give validity to the agreement, though the agreement derives additional weight from long acquiescence. Tietjen v. Dobson, 170 Ga. 123, 152 S.E. 222 (1930) (see O.C.G.A. § 44-4-6). An unascertained or disputed boundary line between coterminous proprietors may be established by oral agreement, if the agreement is accompanied by actual possession to the agreed line, or is otherwise duly executed. Tietjen v. Dobson, 170 Ga. 123, 152 S.E. 222 (1930). While a line established by agreement or acquiescence is binding upon the coterminous proprietors and their grantees, yet, under the first method there must be an actual agreement between coterminous proprietors, and under the second method there must be acquiescence by the acts or declarations of both the adjoining landowners. Bradley v. Shelton, 189 Ga. 696, 7 S.E.2d 261 (1940).

Acquiescence (Cont’d) 1. In General (Cont’d) Independently of the rule laid down in this statute, a parol agreement between coterminous proprietors that a certain line is the true dividing line is valid and binding as between the proprietors, if the agreement is accompanied by possession of the agreed line or is otherwise duly executed, and if the boundary line between the two tracts is indefinite, unascertained, or disputed. Payne v. Green, 84 Ga. App. 689, 67 S.E.2d 195 (1951) (see O.C.G.A. § 44-4-6). Boundary must be in dispute, uncertain, or unascertained. - Before the dividing line can be established by express agreement of the adjoining owners, it must be in dispute, uncertain, or unascertained. Warwick v. Ocean Pond Fishing Club, 206 Ga. 680, 58 S.E.2d 383 (1950); Brand v. Garner, 114 Ga. App. 578, 152 S.E.2d 2 (1966); Kiker v. Anderson, 226 Ga. 121, 172 S.E.2d 835 (1970). Acquiescence for the period required by this statute would be conclusive evidence of a previous agreement, though there may in fact have been none. But an actual agreement in fact, whether in writing or parol, takes the place of acquiescence and becomes binding from the time the agreement is made. Sound logic compels the conclusion that the dividing line is in both instances established by proof that the adjoining owners agreed thereto, the agreement being expressed in one case and conclusively implied in the other, and therefore the requirement that the line be in dispute, uncertain, or unascertained is essential in both cases alike. Warwick v. Ocean Pond Fishing Club, 206 Ga. 680, 58 S.E.2d 383 (1950) (see O.C.G.A. § 44-4-6). Before a dividing line between coterminous owners can be established either by acquiescence or by an executed oral agreement the line’s location must be uncertain, unascertained, or in dispute. Horn v. Preston, 217 Ga. 165, 121 S.E.2d 775 (1961). Proprietor must know or reasonably believe boundary disputed. - Coterminous proprietors must know or reasonably believe a boundary is disputed or unascertained before the proprietors can orally agree to or acquiesce in a new line. Otherwise, the proprietors’ agreement, whether express or

implied, runs afoul of former Code 1933, § 20-401 (see O.C.G.A. § 13-5-30). United States v. Williams, 441 F.2d 637 (5th Cir. 1971). Statute becomes operative only if the boundary line between coterminous owners who acquired their titles from a common grantor is indefinite and unascertainable. United States v. Williams, 441 F.2d 637 (5th Cir. 1971) (see O.C.G.A. § 44-4-6). A line may not be established by acquiescence unless there is some contention between the landowners over the location of the line as a result of which a boundary is established in which the landowners subsequently acquiesce. Cothran v. Burk, 234 Ga. 460, 216 S.E.2d 319 (1975). Applicable in actions for land. - There is nothing which would prevent the rule of law declared in this statute from being applied in actions for land when the evidence shows the acquiescence therein mentioned and the paper title of the litigants embraces the land to the line thus established. Calhoun v. Babcock Bros. Lumber Co., 198 Ga. 74, 30 S.E.2d 872 (1944) (see O.C.G.A. § 44-4-6). Applicable to injunction actions for trespass. - While this rule is applicable in processioning proceedings, it is likewise applicable in an action seeking to enjoin a trespass and to establish the dividing line. Warwick v. Ocean Pond Fishing Club, 206 Ga. 680, 58 S.E.2d 383 (1950). Section applicable to actions to recover nonrural land where title otherwise shown. - This statute and other sections as to processioning authorize proceedings thereunder to mark land lines of rural land, but not of lands located inside the corporate limits of cities or towns. In action to recover land, whether rural or city, when title is otherwise shown, acquiescence by acts or declarations for seven years in a dividing line by adjacent owners establishes such line as the true line, and this statute is applicable in such cases. Veal v. Barber, 197 Ga. 555, 30 S.E.2d 252 (1944) (see O.C.G.A. § 44-4-6). Issue is acquiescence for required period. - On a trial, when a dividing line is an issue and it is claimed that such dividing line is established by acquiescence for a period of more than seven years, the question is whether or not there has been acquiescence by both parties in a dividing line for the required period of time. Watts v. Pettigrew,

207 Ga. 654, 63 S.E.2d 897 (1951). Acquiescence establishes true line whether or not the original line. - Acquiescence by acts and declarations for more than seven years in the dividing line contended for by one of the parties would establish the true line between the adjoining owners, whether it is the original line or not. Rogers v. Moore, 207 Ga. 182, 60 S.E.2d 359 (1950). Fact that the line described in the plaintiff ’s petition as extending along a stated course from one point to another is also alleged to be the original land lot line does not prevent the party claiming the line as the boundary line from proving that it has been acquiesced in by the opposite party and that party’s predecessor in title for seven years. Peacock v. Boatright, 221 Ga. 661, 146 S.E.2d 745 (1966). Acquiescence and proof of title together fix dividing line. - Acquiescence rule will in no case create or establish title, but where a proven title by a fair construction will embrace the lands up to the line established by acquiescence, then title comes from the source proven, and the acquiescence fixes the dividing line. Veal v. Barber, 197 Ga. 555, 30 S.E.2d 252 (1944); Dye v. Dotson, 201 Ga. 1, 39 S.E.2d 8 (1946); Harrison v. Morris, 108 Ga. App. 566, 133 S.E.2d 899 (1963). Distinction between establishment of line by agreement and by acquiescence. - Rules with reference to a line established by acquiescence and a line established by parol agreement differ in two respects: (1) a divisional line, in order to be established by parol agreement, must be one established in consequence of an indefinite, unascertained, or disputed line, which is unnecessary in the case of acquiescence; and (2) a divisional line, in order to be established by acquiescence, must have existed for a period of more than seven years by virtue of the acts or declarations of the adjoining landowners, while this is unnecessary in the case of an agreed line. Smith v. Lanier, 199 Ga. 255, 34 S.E.2d 91 (1945). But see Warwick v. Ocean Pond Fishing Club, 206 Ga. 680, 58 S.E.2d 383 (1950); Brand v. Garner, 114 Ga. App. 578, 152 S.E.2d 2 (1966); Kiker v. Anderson, 226 Ga. 121, 172 S.E.2d 835 (1970); United States v. Williams, 441 F.2d 637 (5th Cir. 1971); Cothran v. Burk, 234 Ga. 460, 216 S.E.2d 319 (1975). Establishment of boundary by parol agreement. - When the boundary line between

two estates are indefinite or unascertained, the owners may by parol agreement establish a division line, and the line thus established will afterwards control their deeds, notwithstanding the statute of frauds. Brown v. Hester, 169 Ga. 410, 150 S.E. 556 (1929). Line acquiesced to is binding without regard to previous parol agreement. - Acquiescence in a dividing line for a period of seven years or more will operate to establish the line, without regard to any previous parol agreement between the parties as to the line. Brown v. Hester, 169 Ga. 410, 150 S.E. 556 (1929). Acquiescence or agreement establishes dividing line notwithstanding statute of frauds. - Acquiescence for seven years, by acts or declarations of adjoining landowners, shall establish a dividing line just as effectually as where the boundary line between two estates is indefinite or unascertained, the owners may by parol agreement establish a division line. In either case, the line thus established will afterwards control their deeds, notwithstanding the statute of frauds. Etheridge v. Gillen, 199 Ga. 242, 34 S.E.2d 105 (1945). Boundary agreement not within statute of frauds since no conveyance involved. - Independent of the rule laid down in this statute, a parol agreement between coterminous proprietors, that a certain line is the true dividing line, is valid and binding as between the proprietors, if the agreement is accompanied by possession of the agreed line or is otherwise duly executed, and if the boundary line between the two tracts is indefinite, unascertained, or disputed. Such an agreement is not within the statute of frauds because it does not operate as a conveyance of land, but merely as an agreement with respect to what has already been conveyed. Farr v. Woolfolk, 118 Ga. 277, 45 S.E. 230 (1903); Bennett v. Swafford, 146 Ga. 473, 91 S.E. 553 (1917); Barfield v. Birrick, 151 Ga. 618, 108 S.E. 43 (1921); Childers v. Dedman, 157 Ga. 632, 122 S.E. 45 (1924) (see O.C.G.A. § 44-4-6). It is necessary in order to establish a dividing line between coterminous landowners by parol agreement alone that there shall be a line which is unascertained, uncertain, or disputed and the only basis for ruling that such an agreement is not within the statute of frauds is that in instances where it is applicable it does not operate as a convey-

Acquiescence (Cont’d) 1. In General (Cont’d) ance of land, but merely as an agreement with respect to what has already been conveyed. Smith v. Lanier, 199 Ga. 255, 34 S.E.2d 91 (1945). Proprietors hold up to agreement by virtue of their title deeds. - When a boundary line is established by consent, the coterminous proprietors hold up to it by virtue of their title deeds, and not by virtue of a parol transfer of title. Shahan v. Watkins, 194 Ga. 164, 21 S.E.2d 58 (1942). Mere acquiescence insufficient to set up equitable title in ejectment action. - When the defendant contends simply that the land in controversy was given to the defendant by parol agreement, but that for some reason the land was not included in the defendant’s deed, in order to set up an equitable title in defense of an ejectment action, it is necessary for the defendant to show more than mere acquiescence for seven years by acts or declarations of adjoining landowners in order to take the case out of the operation of the statute of frauds. Smith v. Lanier, 199 Ga. 255, 34 S.E.2d 91 (1945). Agreement as to dividing line arising out of dispute. - An agreement as to a line entered into between abutting landowners as a result of a dispute between the landowners as to the location of the dividing line between the landowners is an agreement as to a dividing line and needs no construction as to what kind of line it is. Freeman v. Nelson, 138 Ga. App. 697, 227 S.E.2d 475 (1976). Effect of agreement which disregards boundary defined in prior deed. - Agreement which utterly disregards a boundary defined in a prior deed, and which contravenes that deed, is ineffectual against a subsequent purchaser without notice. United States v. Williams, 441 F.2d 637 (5th Cir. 1971). Effect of acquiescence on other landowners. - Acquiescence of certain landowners, whose lands are bounded by a county line, as to the location of such boundary, will not be binding on other landowners not holding under the landowners, and whose lands touch the county line at another place. Farr v. Woolfolk, 118 Ga. 277, 45 S.E. 230 (1903); Ivey v. Cowart, 124 Ga. 159, 52 S.E. 436, 110

Am. St. R. 160 (1905). Proof of boundary by donee of parol gift of land. - When one coterminous landowner makes a parol gift of land to an adjoining landowner, thus changing the divisional line between the properties of the coterminous proprietors, the donee cannot hold the property as against a legal title by merely showing acquiescence in the new line established by virtue of the parol gift. One must go further, and bring oneself within the rules governing parol gifts. Smith v. Lanier, 199 Ga. 255, 34 S.E.2d 91 (1945). Parties and successors in title are bound by agreement. - When a line has been located by an executed parol agreement between the coterminous proprietors, or established by seven years acquiescence, the line thus located and established is binding on the grantee of the coterminous proprietors. Osteen v. Wynn, 131 Ga. 209, 62 S.E. 37, 127 Am. St. R. 212 (1908); Gornto v. Wilson, 141 Ga. 597, 81 S.E. 860 (1914); Shiver v. Hill, 148 Ga. 616, 97 S.E. 676 (1918); Booker v. Booker, 36 Ga. App. 738, 138 S.E. 251, cert. denied, 36 Ga. App. 825, (1927); Lockwood v. Daniel, 193 Ga. 122, 17 S.E.2d 542 (1941); McGill v. Dowman, 195 Ga. 357, 24 S.E.2d 195 (1943). An agreement between coterminous owners of land as to an unascertained boundary line, with seven years acquiescence by all the parties as to the boundary agreed upon, effectively fixes the boundary line and is binding on the parties to the agreement and their successors in title. Hethcock v. Padgett, 217 Ga. 328, 122 S.E.2d 213 (1961), criticized, United States v. Williams, 441 F.2d 637 (5th Cir. 1971). Acts of acquiescence or declarations by both landowners bind their respective successors in title. Robertson v. Abernathy, 195 Ga. 704, 25 S.E.2d 424 (1943). Line established by acquiescence binding on grantees. - Line established by acquiescence for seven years by acts or declarations of adjoining landowners is binding on the grantees of the coterminous proprietors. Booker v. Booker, 41 Ga. App. 380, 153 S.E. 94 (1930); Swinson v. Jones, 66 Ga. App. 598, 18 S.E.2d 646 (1942); Foster v. Thomas, 193 Ga. 823, 20 S.E.2d 80 (1942); Dye v. Dotson, 201 Ga. 1, 39 S.E.2d 8 (1946); Croft v. Beverley, 202 Ga. 210, 43 S.E.2d 93 (1947); Peacock v. Boatright, 221 Ga. 661, 146 S.E.2d 745 (1966).

Relation of principal and agent may exist between husband and wife as to establishment of a boundary line. Barron v. Chamblee, 199 Ga. 591, 34 S.E.2d 828 (1945). Lessor and lessee of property, who are owners of adjacent properties, can acquiesce or agree to the dividing line between their properties. Everett v. Culberson, 215 Ga. 577, 111 S.E.2d 367 (1959). Conclusiveness of agreement and ripening into perfect title. - 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 the period of time prescribed by the statute of limitations, a perfect title by adverse possession is acquired. Greenway v. Griffith, 225 Ga. 632, 170 S.E.2d 423 (1969). Acquiescence for 20 or more years conclusive on parties. - Boundary line acquiesced in by coterminous owners and their possession regulated by it for 20 or more years is conclusive upon the parties and those claiming under those parties. Dye v. Dotson, 201 Ga. 1, 39 S.E.2d 8 (1946). Agreement or acquiescence between landowner and one not the owner of adjoining lands was not conclusive, the parties not being coterminous owners. It was a declaration by a person in possession in disparagement of that person’s title, under former Code 1933, § 38-308 (see O.C.G.A. § 24-3-7), and its probative value was for the jury. Payne v. Green, 84 Ga. App. 689, 67 S.E.2d 195 (1951). Doctrine of prescription is not involved in establishing dividing line by acquiescence of adjoining landowners for a period of more than seven years, and whether or not the dividing line arose permissively is likewise not involved. Watts v. Pettigrew, 207 Ga. 654, 63 S.E.2d 897 (1951). Tenant can have adverse possession. - There can be adverse possession, whether under color of title, or acquiescence in a line, by an owner of adjacent property who is also tenant of an adjacent property owner during such term as the tenancy is in effect. Everett v. Culberson, 215 Ga. 577, 111 S.E.2d 367 (1959). When directed verdict not proper. - When there is evidence that the line claimed

by defendant to be the true line had been in existence for more than seven years, but there is no evidence which conclusively shows that the plaintiffs, or anyone under whom the plaintiffs claim, ever knew of the existence of this line, the case is one for the jury, and not one for direction of a verdict. Norman, Timmons & Co. v. Smith, 131 Ga. 69, 61 S.E. 1039 (1908). Denial of new trial upheld on review if evidence sufficient, despite evidence to contrary. - Since the evidence as to the location of the dividing line between the properties of the parties was conflicting, the Supreme Court would not reverse the judgment of the trial court in overruling a motion for new trial on general grounds only, when there was sufficient evidence to show the establishment of a dividing line which had been acquiesced in by acts or declarations of the owners for more than 30 years, although there was other evidence to the contrary. Hendrix v. Pirkle, 209 Ga. 882, 76 S.E.2d 769 (1953). 2. Proof of Agreement and Acquiescence Establishment of dividing line by acquiescence is bottomed upon conclusive proof of agreement and stands upon the same basis as the establishment of such a line by express agreement. Warwick v. Ocean Pond Fishing Club, 206 Ga. 680, 58 S.E.2d 383 (1950); Brand v. Garner, 114 Ga. App. 578, 152 S.E.2d 2 (1966). Acquiescence for seven years is conclusive evidence of agreement. - Fundamental basic principle upon which this statute rests is that acquiescence by acts or declarations for a period of seven years is conclusive evidence of an agreement of the adjoining owners. Warwick v. Ocean Pond Fishing Club, 206 Ga. 680, 58 S.E.2d 383 (1950) (see O.C.G.A. § 44-4-6). Trial court erred in finding as a matter of law that the boundary line at issue had not been established by acquiescence under O.C.G.A. § 44-4-6 or by agreement; owners at time of purchase mutually understood boundary line was that marked and blazed a few months earlier and honored this line for more than seven years. Gillis v. Buchheit, 232 Ga. App. 126, 500 S.E.2d 38 (1998). Pursuant to O.C.G.A. § 44-4-6, a line of blue-marked trees, not the edge of a river swamp described in plats and deeds, was the

Acquiescence (Cont’d) 2. Proof of Agreement and Acquiescence (Cont’d) common boundary of the parties’ tracts because the evidence showed the blue line had been marked with the knowledge and consent of adjacent landowners more than 30 years earlier. McDilda v. Norman W. Fries, Inc., 278 Ga. App. 51, 628 S.E.2d 195 (2006). Acquiescence for seven years establishes line, absent parol agreement. - Acquiescence in a dividing line for a period of seven years or more will operate to establish the line, without regard to any previous parol agreement between the parties as to the line. Hatch v. Miller, 179 Ga. 629, 176 S.E. 631 (1934); Williamson v. Prather, 188 Ga. 545, 4 S.E.2d 140 (1939). When evidence relied on covers less than seven years, it does not suffice to establish the line between the adjoining landowners. Green v. Stafford, 206 Ga. 836, 59 S.E.2d 244 (1950). Acquiescence by conduct for a period of time less than seven years will not suffice to establish a dividing line between adjoining landowners. Osteen v. Wynn, 131 Ga. 209, 62 S.E. 37, 127 Am. St. R. 212 (1908); McAleer v. Glover, 146 Ga. 369, 91 S.E. 114 (1917); Sapp v. Odom, 165 Ga. 437, 141 S.E. 201 (1928). Seven year requirement not met where action in ejectment brought in less than seven years. - When evidence in ejectment shows that a survey forms the basis of the claim of acquiescence and the petition alleges that since a date less than seven years later, the defendant in ejectment has been in possession of the claimed property, it affirmatively appears that, if acquiescence was shown, it could not have been for the required period of seven years. Green v. Stafford, 206 Ga. 836, 59 S.E.2d 244 (1950). Acquiescence must be shown by acts or declarations. - When it is sought to establish the dividing line between two tracts of land by acquiescence of the adjoining landowners, without reference to the line called for in the deeds of division, the line is not established as the dividing line in the absence of acts or declarations by the landowners of both tracts establishing it as the dividing line. Southern Timber Co. v. Bland, 32 Ga. App. 658, 124 S.E. 359 (1924).

To establish a line by acquiescence, it must appear that the owners of the property to be affected thereby either acted in such a manner or made such declarations for a period of seven years as to show that the line claimed was the true line between their lands. Greenway v. Altman, 89 Ga. App. 557, 80 S.E.2d 89 (1954). Acquiescence essential to the establishment of a line must be not only for the period fixed in the statute, but be shown by acts or declarations. Scales v. Wood, 100 Ga. App. 836, 112 S.E.2d 670 (1959). To establish a line by acquiescence, it must appear that the owners of the property to be affected thereby either acted in such a manner or made such declarations for a period of seven years as to show that the line claimed was the true line between their lands. Actual possession by the respective owners up to the line may show acquiescence in the line. Stripland v. Nalley, 108 Ga. App. 311, 132 S.E.2d 849 (1963). To establish a line by acquiescence, it must appear that the owners of the property to be affected acted in such a manner for a space of seven years, or made such declarations during the continuance of that period, as to show that the line claimed was the true line between the estates. Catoosa Springs Co. v. Webb, 123 Ga. 33, 50 S.E. 942 (1905); Tietjen v. Dobson, 170 Ga. 123, 152 S.E. 222 (1930); Adair v. Atlanta Jewish Community, Inc., 228 Ga. 422, 185 S.E.2d 921 (1971). All the adjoining landowners must acquiesce. - In order for a boundary line to be established by acquiescence for seven years, such acquiescence must be by the acts or declarations of all the adjoining landowners. Robertson v. Abernathy, 192 Ga. 694, 16 S.E.2d 584 (1941), later appeal, 195 Ga. 704, 25 S.E.2d 424 (1943). Establishment of a line by acquiescence can be accomplished only by the acts of declarations of both adjoining owners. Carter v. Wyatt, 113 Ga. App. 235, 148 S.E.2d 74 (1966). Passive conduct insufficient for acquiescence. - Acts or declarations by the adjoining landowner are necessary elements under the statutory definition of acquiescence. Mere passive conduct and nothing more will not suffice. Binion v. First Fed. Sav. & Loan Ass’n, 259 Ga. 170, 377 S.E.2d 858 (1989). Passive acquiescence insufficient. - There must be, in order to establish a divid-

ing line by acquiescence, acts or declarations by both adjoining landowners and mere passive acquiescence will not suffice. Gordon v. Georgia Kraft Co., 217 Ga. 500, 123 S.E.2d 540 (1962). Mere passive acquiescence is not sufficient to establish a dividing line. Adair v. Atlanta Jewish Community, Inc., 228 Ga. 422, 185 S.E.2d 921 (1971). Acquiescence need not be evidenced by conventional agreement. - In order that a line may be established by acquiescence for seven years by the acts or declarations of the owners of adjoining land, it is not essential that the acquiescence be manifested by a conventional agreement. Osteen v. Wynn, 131 Ga. 209, 62 S.E. 37, 127 Am. St. R. 212 (1908); Zachery v. Hudson, 138 Ga. 85, 74 S.E. 768 (1912); Sapp v. Odom, 165 Ga. 437, 141 S.E. 201 (1928); Lockwood v. Daniel, 193 Ga. 122, 17 S.E.2d 542 (1941); Swinson v. Jones, 66 Ga. App. 598, 18 S.E.2d 646 (1942); McGill v. Dowman, 195 Ga. 357, 24 S.E.2d 195 (1943); Robertson v. Abernathy, 195 Ga. 704, 25 S.E.2d 424 (1943); Watts v. Pettigrew, 207 Ga. 654, 63 S.E.2d 897 (1951). Adjoining landowner must know of boundary claim. - It must appear that as to the line sought to be established by a coterminous owner, the owner’s claim of it as a line must have been made known to the adjoining owner, for one cannot acquiesce in something of which one has no knowledge. Carter v. Wyatt, 113 Ga. App. 235, 148 S.E.2d 74 (1966). Fact that protestants had claimed an old fence as the dividing line for more than seven years, or more than 20 years, without a showing that the claim was made known to the adjoining owner could not establish the fence as the line. Carter v. Wyatt, 113 Ga. App. 235, 148 S.E.2d 74 (1966). Actual possession by respective owners up to the line may show acquiescence in the line. Dye v. Dotson, 201 Ga. 1, 39 S.E.2d 8 (1946); Browne v. Johnson, 204 Ga. 634, 51 S.E.2d 416 (1949). Possession is not sole means of showing acquiescence. - Statute does not declare that actual possession by both parties up to the line for the prescribed period is the only way of showing acquiescence in a dividing line. Tietjen v. Dobson, 170 Ga. 123, 152 S.E. 222 (1930) (see O.C.G.A. § 44-4-6). Occupancy not indispensable to agreement. - Actual occupancy to the agreed

line, by cultivation or the erection of fences on the line, is not indispensable to the due execution of the parol agreement. Payne v. Green, 84 Ga. App. 689, 67 S.E.2d 195 (1951). Nor acquiescence. Tietjen v. Dobson, 170 Ga. 123, 152 S.E. 222 (1930); Greenway v. Altman, 89 Ga. App. 557, 80 S.E.2d 89 (1954); Greenway v. Griffith, 225 Ga. 632, 170 S.E.2d 423 (1969); Brewer v. Head, 233 Ga. 585, 212 S.E.2d 772 (1975). When other party permitted to occupy over line, absent physical markers, no agreement shown. - While actual possession by cultivation or the erection of fences on the line is not indispensable to the due execution of a parol agreement, nevertheless, when the evidence shows that one of the parties did not so occupy to the line allegedly agreed on, but permitted the other party to continue to occupy over the line claimed, and fails to show that the agreement on the line was executed by the erection of monuments or other physical evidence of the actual location of the line by concert of the parties to the dispute, there was no evidence of a legal agreement executed. Myers v. Jackson, 87 Ga. App. 161, 73 S.E.2d 220 (1952). When parties maintained actual possession up to certain road as a dividing line, the evidence was sufficient to establish the line by acquiescence. Tietjen v. Dobson, 170 Ga. 123, 152 S.E. 222 (1930). Title to disputed property could be established by a deed which encompassed the disputed land while the exact boundary could be established through acquiescence or, alternatively, through agreement by physical marking of the property. Dunn v. Lightle, 223 Ga. App. 137, 476 S.E.2d 776 (1996). Acquiescence to line fixed by indefinite terms of mutual conveyance. - Acquiescence for more than seven years of the coterminous landowners of the line fixed by the indefinite terms of mutual conveyances is sufficient to establish the validity of the line. Etheridge v. Gillen, 199 Ga. 242, 34 S.E.2d 105 (1945). Fence as line acquiesced to by parties. - When evidence shows that the applicant and the protestant have been in possession of their respective lands up to the fence for many years, the processioners are required

Acquiescence (Cont’d) 2. Proof of Agreement and Acquiescence (Cont’d) to mark the line along the fence. Acquiescence in that line for seven years established the line at the fence. Acquiescence in such a line for more than seven years is conclusive evidence of an agreement between coterminous landowners as to the location of the line. Brantley v. Thompson, 102 Ga. App. 355, 116 S.E.2d 300 (1960). Plat boundary line not dispositive. - Even if 1944 subdivision plat had specified the boundary line, such description would not be dispositive, if a subsequent line had been established by acquiescence or agreement. Gillis v. Buchheit, 232 Ga. App. 126, 500 S.E.2d 38 (1998). Failure to dispute location of a fence is not necessarily acquiescence in a boundary since a fence may be placed for purposes other than fixing the boundary. Cothran v. Burk, 234 Ga. 460, 216 S.E.2d 319 (1975). But see Smith v. Lanier, 199 Ga. 255, 34 S.E.2d 91 (1945). Placement of a fence does not necessarily indicate acquiescence in a boundary. Waters v. Spell, 190 Ga. App. 790, 380 S.E.2d 55 (1989). That fence ‘‘weeded’’ to on either side is some evidence of acquiescence. - In a statutory proceeding involving a boundary line, testimony of processioner that, in laying out the boundary, a fence had been ‘‘weeded’’ to by the proprietors on each side of the fence, and apparently had stood long enough to be considered a line acquiesced in by both parties, was some evidence that the line had been acquiesced in by both parties. Railey v. Heath, 92 Ga. App. 123, 88 S.E.2d 194 (1955). Line established through encroachment, cultivation, and cutting of timber. - When one of two adjoining landowners encroaches upon the land of the other and cultivates the land and cuts timber therefrom, and in so doing establishes a definite and ascertainable line between the land thus encroached upon and the remaining portion of the land of the adjoining landowner, acquiescence in this established line by both the landowners for a period of seven years establishes this line as the true dividing line between the two tracts and the line so estab-

lished by acquiescence is such an established line as may be marked out by the processioners as the true dividing line between the two tracts. Brogdon v. Cooper, 41 Ga. App. 88, 151 S.E. 834 (1930). Cutting timber up to old fence not sufficient. - That protestants may have sold and caused timber to be cut up to an old fence is not alone a sufficient act or declaration to establish the old fence as a dividing line by acquiescence. Carter v. Wyatt, 113 Ga. App. 235, 148 S.E.2d 74 (1966). Effect of encroachment not acquiescenced to for statutory period. - When the parties have not actually agreed upon the line and there has been no establishment of the line by acquiescence of both coterminous owners for seven years, if one of the coterminous owners encroaches beyond one’s true boundary, though one does so in good faith and as a result of honest mistake, one has only a bare possessio pedis beyond one’s true boundary, and cannot ripen any title thereby in less than 20 years. Spillers v. Jordan, 96 Ga. App. 426, 100 S.E.2d 483 (1957). For low-water mark in pond as boundary, see Boardman v. Scott, 102 Ga. 404, 30 S.E. 982, 51 L.R.A. 178 (1897). Burden of proving ownership to designated boundary. - One claiming land to a designated boundary line has the burden of showing that one owns such line, either by showing by means of a survey or like means that the land claimed is actually included within one’s title, or by showing such actual physical possession of the plot as would entitle one to prescriptive ownership. Spillers v. Jordan, 96 Ga. App. 426, 100 S.E.2d 483 (1957). 3. Marking of Line Agreed line should be marked to permit identification. - Agreement, to be duly executed, must at the very least mark out or blaze a boundary so that it can be physically identified by the parties. An agreement not so executed does not so fix and establish a boundary line. Payne v. Green, 84 Ga. App. 689, 67 S.E.2d 195 (1951). Line may be marked by physical monuments or marked trees. - Agreement may be executed by the erection of physical monuments upon the agreed line, or by the marking of trees plainly indicating the line,

if such erection of monuments or marking of trees is done with the knowledge and mutual assent of the respective proprietors. Barron v. Chamblee, 199 Ga. 591, 34 S.E.2d 828 (1945); Greenway v. Griffith, 225 Ga. 632, 170 S.E.2d 423 (1969). An oral agreement establishing a boundary may be duly executed by marking the line with monuments or blazes with the consent of the adjoining landowners. Cothran v. Burk, 234 Ga. 460, 216 S.E.2d 319 (1975). Erecting monuments will amount to practical location. - If adjoining proprietors deliberately erect monuments or fences or make improvements on a line between their lands upon the understanding that it is the true line, it will amount to a practical location. Greenway v. Griffith, 225 Ga. 632, 170 S.E.2d 423 (1969). Single stake makes line ascertainable but does not ascertain line. - Putting down of a single stake and agreeing that the district line should be the line, leaves the boundary line, while easily ascertainable, still not physically ascertained, and the most that could be said for the single marker put down at that time was that it was an agreement as to a corner. Payne v. Green, 84 Ga. App. 689, 67 S.E.2d 195 (1951). Strands of wire imbedded in trees and remains of fence insufficient notice to purchaser. - Strands of wire imbedded in several old trees and the remains of a fence, which were all that remained of an alleged boundary when the property was purchased does not constitute possession which would give notice of the purported agreement to a bona fide purchaser. United States v. Williams, 441 F.2d 637 (5th Cir. 1971). Markings did not support adverse possession claim. - Surveying of a disputed tract of land and marking of drill rods and pins found thereon did not amount to an adverse possession; additionally, these acts did not become an adverse possession merely because the acts were done in the presence of the true owner and consistent with the owner’s indications of the property boundaries. Henson v. Tucker, 278 Ga. App. 859, 630 S.E.2d 64 (2006). 4. Processioning Section sets forth rules for processioners and jury. - Rules to be followed by

processioners in ascertaining the location of disputed land lines and by juries in the trial of processioning cases were 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). Processioners bound by section. - 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). Processioners shall respect actual possession under claim of right for more than seven years. - Location of lines, not as the lines ought to be, but as the lines actually exist, is to be sought; and, if one has been in actual possession of land for more than seven years, under a claim of right, such claim shall be respected by the processioners, even though the land so possessed should be found to be within the original line of the opposing party. Milligan v. Hale, 88 Ga. App. 70, 76 S.E.2d 29 (1953). Established lines include those acquiesced in for processioning purposes. - While processioners can mark out only established land lines, an established land line may be one established by acquiescence for a period of seven years, evidenced by acts or declarations of the adjoining landowners. Brogdon v. Cooper, 41 Ga. App. 88, 151 S.E. 834 (1930). Lines established by processioners may be changed by subsequent agreement or acquiescence. - Boundary line run by processioners, to which no protest is filed, fixes the dividing line between the properties at that time, but the parties can still by subsequent agreement or acts of acquiescence establish another or different dividing line between their properties. Allen v. Bone, 202 Ga. 349, 43 S.E.2d 311 (1947). When agreed line between owners holding under common feoffor is disregarded, the line run is illegal. Cleveland v. Treadwell, 68 Ga. 835 (1882). Jury charge in processioning proceeding. - It was not error for the judge in a processioning proceeding to instruct the jury on former Code 1933, §§ 85-1602 and

Acquiescence (Cont’d) 4. Processioning (Cont’d) 85-1603 (see O.C.G.A. §§ 44-4-6 and 44-4-7) and to instruct the jury to apply the portions of the charge the jury deem applicable and to disregard the inapplicable portions. Fraser v. Kichline, 108 Ga. App. 701, 134 S.E.2d 492 (1963). 5. Jury Instructions Section, if charged, should be given substantially if not literally. - When the principle of law embodied in this statute is applicable under the evidence, and the court undertakes to give the statute in charge to the jury, it should be given substantially if not literally. Cassels v. Mays, 147 Ga. 224, 93 S.E. 199 (1917); O’Neal v. Ward, 148 Ga. App. 62, 95 S.E. 709 (1918) (see O.C.G.A. § 44-4-6). Section must be charged where boundary in dispute. - When the true location of the dividing line between the lands of the plaintiff and the defendants is a matter of dispute, and under the pleadings and evidence there is a question of whether a line had been established by acquiescence by acts and declarations of the parties or their predecessors, or by actual possession of the defendants and their predecessors for a term of seven years. It is the duty of the court, without request, to charge the law on that subject. Brookman v. Rennolds, 148 Ga. 721, 98 S.E. 543 (1919). When evidence would authorize finding of acquiescence, statute must be charged. - When there is evidence from which the jury would be authorized to find that there has been seven years acquiescence, by acts or declarations, in the line as contended for by the defendant, the court should charge this statute. Hailey v. McMullan, 144 Ga. 147, 86 S.E. 315 (1915) (see O.C.G.A. § 44-4-6). General instructions. - On the trial of a case involving the establishment of a dividing line between coterminous landowners it is not error under the facts for the court to instruct the jury: ‘‘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 the period of time prescribed by the statute of

limitations, a perfect title by adverse possession is acquired. If adjoining proprietors deliberately erect monuments or fences or make improvements on a line between their lands upon the understanding that it is the true line, it will amount to a practical location.’’ Henderson v. Walker, 157 Ga. 856, 122 S.E. 613 (1924). Charge that, where a boundary line between adjoining landowners is indefinite or unascertained, coterminous proprietors may by parol agreement establish a dividing line, and if the agreement is accompanied by possession to an agreed line, or is otherwise duly executed, such agreement will be valid and binding, states a correct abstract principle of law and is not error. Griner v. Lindsey, 210 Ga. 563, 81 S.E.2d 802 (1954). Instruction to leave parties as parties are when testimony conflicts and claims not established. - When the line contended for by protestants has not been established by acquiescence and when there is some conflict in the testimony as to the markings on the line contended for by applicant, a third verdict could be rendered leaving the parties where the parties are, and the jury should be properly instructed as to that as well as on the possible verdicts for each party. Carter v. Wyatt, 113 Ga. App. 235, 148 S.E.2d 74 (1966). Omission of instruction as to knowledge of acquiescing party. - When the trial court’s charge defines acquiescence as meaning ‘‘to rest, to submit without opposition or question, to yield assent,’’ it is not error to omit an instruction that knowledge, on the part of the party to be charged with acquiescing, is an essential element of acquiescence, absent any request therefor. Carter v. Wyatt, 113 Ga. App. 235, 148 S.E.2d 74 (1966). Error to omit charge as to acts or declarations of adjoining landowners. Cassels v. Mays, 147 Ga. 224, 93 S.E. 199 (1917); O’Neal v. Ward, 148 Ga. App. 62, 95 S.E. 709 (1918); Veal v. Barber, 197 Ga. 555, 30 S.E.2d 252 (1944). This omission constituted material error, as the jury might think that mere passive acquiescence would suffice to establish a dividing line, whereas acquiescence of that character is not sufficient. Cassels v. Mays, 147 Ga. 224, 93 S.E. 199 (1917); O’Neal v. Ward, 148 Ga. App. 62, 95 S.E. 709 (1918).

Charge as to number of years acquiescence must exist. - An instruction applying these rules was not cause for new trial because the court referred to the line of acquiescence and actual possession as ‘‘a term of years as the law prescribes’’ and ‘‘a number of years,’’ where in immediate connection therewith the court also instructed the jury in the language of former Civil Code 1910, §§ 3821 and 3822 (see O.C.G.A. §§ 44-4-6 and 44-4-7), that such acquiescence or actual possession must exist for seven years. The evidence authorized the charge complained of. Georgia Talc Co. v. Cohutta Talc Co., 140 Ga. 245, 78 S.E. 905 (1913). Omission of seven-year requirement in charge. - When the trial court charged the jury in the language of this statute that ‘‘acquiescence for seven years by acts or declarations of adjoining landowners, shall establish a dividing line,’’ and added immediately thereafter, ‘‘in other words, acquiescence by acts or declarations of adjoining landowner, shall establish a dividing line,’’ the latter statement standing alone was inapt, but was so closely connected with the above quotation from the statute that the jury could not have been misled or confused by the court’s failure to repeat the words, ‘‘for seven years.’’ Griner v. Lindsey, 210 Ga. 563, 81 S.E.2d 802 (1954) (see O.C.G.A. § 44-4-6). Erroneous reference in instruction to ‘‘original line’’ rather than ‘‘dividing line’’. - No prejudice to the defendant in a suit to determine a boundary line appeared in the inaccurate instruction to the jury that the line which might be fixed by acquiescence was the ‘‘original line,’’ instead of referring to the line, as described in this statute, as the ‘‘dividing line,’’ where under the evidence for the plaintiff, the original line and the acquiesced line were the same. Robertson v.

Abernathy, 195 Ga. 704, 25 S.E.2d 424 (1943) (see O.C.G.A. § 44-4-6). Instruction as to location of line by means of monuments or improvements. - The following charge to the jury is correct: If the plaintiff and defendant, or those under whom they claim, established a fence as the line between the plaintiff ’s and defendant’s two pieces of property, and it had been acquiesced in by the parties for seven years, then it would be the dividing line, regardless of recitals in a deed with regard to the number of feet. Zachery v. Hudson, 138 Ga. 85, 74 S.E. 768 (1912). It is not error for the court to charge the jury as follows: ‘‘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.’’ Henderson v. Walker, 157 Ga. 856, 122 S.E. 613 (1924). Trial court’s charge that if adjoining property owners deliberately erect monuments or fences or make improvements on a line between their lands, upon the understanding that it is the true line, then it will amount to a true location is erroneous where nothing in the evidence supports any agreement or understanding between the parties, or their predecessors in title, that the monument, fence, or improvement is on the true line. Carter v. Wyatt, 113 Ga. App. 235, 148 S.E.2d 74 (1966). Charging of §§ 44-4-5 and 44-4-6 in ejectment action. - When the principal issue in an ejectment action is the determination of a land lot line, it is not error for the trial judge to charge the jury the rules prescribed in § 44-4-5 and this section. Wood v. Elliott, 114 Ga. App. 612, 152 S.E.2d 595 (1966).

OPINIONS OF THE ATTORNEY GENERAL New survey does not operate to change boundary acquiesced in for ten years. - When the boundary line between state property and that of an adjoining landowner has been plainly marked with concrete markers for ten years and acquiesced in by the ad-

joining landowner, a new survey conducted by the landowner indicating that the landowner should originally have had more of the land will not operate to give the landowner title to the land. 1971 Op. Att’y Gen. No. U71-18.

RESEARCH REFERENCES ALR. - Establishment of boundary line by oral agreement or acquiescence, 113 ALR 421.

Sufficiency of description in standing timber deed or contract, 35 ALR2d 1422.