O.C.G.A. § 44-4-7 (2019)

Annotations

Cross references. - Nature of title by prescription, § 44-5-160 et seq. JUDICIAL DECISIONS Analysis General Consideration Acquiescence Jury Charge Verdict General Consideration Processioners and juries to follow law. - 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 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). Section inapplicable to town lots. - 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 suit 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). Section contemplates a line established by

adverse possession of one of the owners under a bona fide claim of right for a period of seven years. Watkins v. Sailers, 65 Ga. App. 77, 15 S.E.2d 306 (1941) (see O.C.G.A. § 44-4-7). Actual possession under claim of right for more than seven years will establish marked lines. Pope v. Beasley, 200 Ga. 656, 38 S.E.2d 300 (1946). Section deals with boundaries, not title. - Provisions of this statute do not relate to the determination of prescriptive title, but merely to the fixing of prescriptive boundaries as between coterminous claimants. Byrd v. McLucas, 194 Ga. 40, 20 S.E.2d 597 (1942); Osborne v. Thompson, 154 Ga. App. 215, 267 S.E.2d 852 (1980) (see O.C.G.A. § 44-4-7). Section inapplicable when title is determining factor involved and not the true location of a boundary line. Harrison v. Morris, 108 Ga. App. 566, 133 S.E.2d 899 (1963) (see O.C.G.A. § 44-4-7). Processioners not to determine conflicting claims to title. - Since the object of the summary processioning laws is to settle disputes of boundary lines between coterminous landowners, and the proceed-

ing is not designed as a substitute for an action in ejectment to settle title, which is not directly involved, it will be presumed that the processioners would not undertake to exercise jurisdiction to pass upon or determine any question involving a disputed title, but will confine themselves solely to the fixing of boundaries between the adjacent claimants, leaving undetermined any question relating to conflicting claims as to the title itself. Osborne v. Thompson, 154 Ga. App. 215, 267 S.E.2d 852 (1980). Question not one of prescription, but duration of claim must be determined. - Question with which processioners deal is not one of prescription, but of boundary; but processioners are to determine the question of fact as to whether possession has been held for seven years under a claim of right. Aderhold v. Lambert, 67 Ga. App. 166, 19 S.E.2d 538 (1942). Processioners not to determine where lines should be absent adverse possession. - When a claim is made by a coterminous owner of actual possession under a claim of right for more than seven years to a portion of the land found to be outside of the true original line, processioners are not to declare where the lines ought to be without regard to adverse possession, but where they really are. Aderhold v. Lambert, 67 Ga. App. 166, 19 S.E.2d 538 (1942). Acts of parties or operation of law considered. - Processioners are not charged with ascertaining and marking such lines as were originally fixed between subdivisions of land, to the exclusion of such lines as have been, before the time of processioning, established either by the act of the parties or by operation of law. Aderhold v. Lambert, 67 Ga. App. 166, 19 S.E.2d 538 (1942). Processioners must respect actual possession under claim of right. - Any actual possession under a claim of right, which has continued for more than seven years, is to be respected by processioners. Aderhold v. Lambert, 67 Ga. App. 166, 19 S.E.2d 538 (1942). If actual possession has been had under a claim of right for more than seven years, such claim shall be respected, and the lines so marked by the processioners as not to interfere with such possession. Aderhold v. Lambert, 67 Ga. App. 166, 19 S.E.2d 538 (1942).

Possession existing at time lines marked considered. - Possession which this statute requires processioners to respect is a possession existing at the time the lines are marked. Riddle v. Sheppard, 119 Ga. 930, 47 S.E. 201 (1904) (see O.C.G.A. § 44-4-7). Whether it originated in prescription or not. - Any actual possession under a claim of right, which has continued for more than seven years, is to be respected by processioners, whether it originated in permission or not. The question with which processioners deal is not one of prescription, but of boundary. Christian v. Weaver, 79 Ga. 406, 7 S.E. 261 (1887). Effect of possession of land found to be within original line of opposing party. - Under the law of processioning as the law exists in this state, established lines, and 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. When 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. Aderhold v. Lambert, 67 Ga. App. 166, 19 S.E.2d 538 (1942); Milligan v. Hale, 88 Ga. App. 70, 76 S.E.2d 29 (1953); Osborne v. Thompson, 154 Ga. App. 215, 267 S.E.2d 852 (1980). Possession must be under color of title for seven-year period to apply. - In order for prescription to be a foundation of a valid title, there must be actual adverse possession for the period of 20 years, unless such possession is under color of title, in which case the period of time is reduced to seven years. In the event possession is asserted to have been under color of title, the actual limits described in the writing set up as color will not be extended to embrace other land, not included in the writing, merely because such land lying beyond the limits described in the writing has been taken possession of under a mistake and occupied for over seven years, though the party seeking to prescribe acted in good faith in extending one’s possession beyond the limits of the tract of land actually defined in one’s conveyance to contiguous land. Wight v. Davis, 202 Ga. 239, 42 S.E.2d 641 (1947). Mere naked possession, with no intention of asserting ownership, is not such actual

General Consideration (Cont’d) possession under a claim of right as is contemplated by law. Riddle v. Sheppard, 119 Ga. 930, 47 S.E. 201 (1904). Party to decree fixing lines cannot by adverse possession establish different line. - Party to a decree fixing the dividing lines cannot, by seven years adverse possession alone, establish a different line from the one fixed by the decree. Watkins v. Sailers, 65 Ga. App. 77, 15 S.E.2d 306 (1941). Effect of running line through property adversely held. - When the muniments of title of the adjacent landowners call for a line which is the land-lot line between two lots of land, and such line as run by the processioners passes in part through lands adversely held for seven years by one of the parties, the entire proceeding is not per se void. Stewart v. Jackson, 144 Ga. 501, 87 S.E. 656 (1916); Burdette v. Coleman, 31 Ga. App. 553, 121 S.E. 143 (1924). When possession partial, original line controls rest of boundary. - Party who has been in actual possession of a strip of land for more than seven years under a claim of right should prevail as to that part of the line, and the rest of the line should be the original land-lot line between the two lots of land. Burdette v. Coleman, 31 Ga. App. 553, 121 S.E. 143 (1924). Procedure where lines not marked but corners and landmarks exist. - Even though the course and extent of the lines themselves may not have been physically marked out in their entirety upon the earth’s surface, yet if there should exist a sufficient number of physically established corners or landmarks, the mere connecting of which by straight lines would suffice to complete the boundaries it would be the duty of processioners to so ascertain and establish the boundaries, but respecting always any rights had under actual possession. Dodson v. Knox, 89 Ga. App. 760, 81 S.E.2d 211 (1954). Coterminous proprietors may execute agreement by erection of physical monuments. - An unascertained or disputed boundary line between coterminous proprietors may be established by oral agreement, if the agreement be accompanied by actual possession to the line, or is otherwise duly executed. In such instance the 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. Greenway v. Griffith, 225 Ga. 632, 170 S.E.2d 423 (1969). Which amount to a 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). Enclosure and cultivation of tract as establishing line. - Jury verdict in favor of the line claimed by the protestant is authorized by evidence of enclosure of the tract in question and cultivation of a part thereof for a period of more than 20 years upon which possession title by prescription may be founded. Payne v. Green, 84 Ga. App. 689, 67 S.E.2d 195 (1951). Mere use of property for cattle range, with occasional cutting of timber, is not sufficient to constitute adverse possession. Dixon v. Dixon, 97 Ga. App. 54, 102 S.E.2d 74 (1958). Survey of tract not evidence to support adverse possession. - Resurvey of a tract of land, or entering on a tract of land for the purpose of making a survey, is not evidence to support an adverse possession. Dillon v. Mattox, 21 Ga. 113 (1857). Return rejected where processioners and surveyor ignore claims and possession of parties. - If the processioners and surveyor testify that the processioners and surveyor ignored the claims of both sides, and paid no attention to the possession of the parties, although the parties actually claim such possession, the processioners’ and surveyor’s return must be rejected. Welch v. Haley, 83 Ga. App. 492, 64 S.E.2d 364 (1951). Burden of proof is on one claiming possession. - Burden is on defendant to show that the defendant is in possession under a claim of right. If the defendant is relying on this statute, the burden is on the defendant to show not only actual possession for seven years, but that the actual possession had been under a claim of right for that length of time. Norman, Timmons & Co. v. Smith, 131 Ga. 69, 61 S.E. 1039 (1908) (see O.C.G.A. § 44-4-7).

One claiming land to a designated boundary line has the burden of showing that one owns land to 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). Adverse possession, acquiescence, and acts of landowners control over conflicting prior deed. - Actual adverse possession, acquiescence, and the acts of the adjoining landowners in thus impliedly establishing for more than seven years a dividing line, will control the boundary, even though it may conflict with recitals in an otherwise controlling prior deed of one of the parties. Reynolds v. Kinsey, 50 Ga. App. 385, 178 S.E. 200 (1935). Cited in Camp v. Cochrane, 71 Ga. 865 (1883); Johnson v. Reeves, 133 Ga. 822, 66 S.E. 1081 (1910); Stewart v. Smith, 135 Ga. 390, 69 S.E. 540 (1910); Cosby v. Reid, 21 Ga. App. 604, 94 S.E. 824 (1918); Tucker v. Roberts, 151 Ga. 753, 108 S.E. 222 (1921); Wiggins v. James, 30 Ga. App. 52, 116 S.E. 547 (1923); Burdette v. Coleman, 31 Ga. App. 553, 121 S.E. 130 (1924); Yarbrough v. Stuckey, 39 Ga. App. 265, 145 S.E. 160 (1929); Hill v. Snellings, 41 Ga. App. 585, 154 S.E. 156 (1930); Long v. Robertson, 41 Ga. App. 712, 154 S.E. 464 (1930); Reynolds v. Kinsey, 50 Ga. App. 385, 178 S.E. 200 (1935); Pearre v. Wilkinson, 54 Ga. App. 638, 188 S.E. 553 (1936); Barnes v. Avery, 192 Ga. 874, 16 S.E.2d 861 (1941); Hicks v. Cherry, 193 Ga. 4, 17 S.E.2d 60 (1941); Veal v. Barber, 197 Ga. 555, 30 S.E.2d 252 (1944); Smith v. Lanier, 199 Ga. 255, 34 S.E.2d 91 (1945); 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); Rogers v. Moore, 207 Ga. 182, 60 S.E.2d 359 (1950); Ledford v. Hill, 82 Ga. App. 299, 60 S.E.2d 555 (1950); Tolbert v. Free, 111 Ga. App. 811, 143 S.E.2d 440 (1965); Howell v. Baynes, 225 Ga. 164, 166 S.E.2d 359 (1969); Morgan v. Livsey, 122 Ga. App. 644, 178 S.E.2d 303 (1970); Murphy v. Stringer, 126 Ga. App. 40, 189 S.E.2d 881 (1972); Banks v. Myrick, 149 Ga. App. 252, 253 S.E.2d 873 (1979); Page v. Guin, 187 Ga. App. 143, 369 S.E.2d 517 (1988); Henson v.

Tucker, 278 Ga. App. 859, 630 S.E.2d 64 (2006). Acquiescence Establishment of line by acquiescence generally. - 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); Greenway v. Griffith, 225 Ga. 632, 170 S.E.2d 423 (1969). Agreement followed by acquiescence and possession for statutory period perfects title. - When 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). Adjoining landowners may agree upon the dividing line between the landowners, and each will own up to the agreed line as fully as if it were a natural boundary or as if the landowners respective deeds or grants called for it. Such agreement may be implied as well as expressed, and in either case the definite settlement of the boundary line not previously defined is a good and sufficient consideration to uphold the agreement. When an agreement establishing a dividing line between adjoining property owners is followed by acquiescence and possession, the parties are concluded by the parties’ agreement, and when the acquiescence and possession have continued for seven years, a perfect title by adverse possession is acquired. McGinty v. Interstate Land & Imp. Co., 92 Ga. App. 770, 90 S.E.2d 42 (1955). Actual possession up to line not indispensable to show acquiescence. - Actual possession by the respective owners up to the line may show acquiescence in the line, but such actual possession is not indispensable to show acquiescence in the line. Greenway v. Griffith, 225 Ga. 632, 170 S.E.2d 423 (1969). Line established by acquiescence binding on grantees. - Line established by acquiescence for seven years, by acts or declarations

Acquiescence (Cont’d) of adjoining landowners, is binding on the grantees of the coterminous proprietors. Booker v. Booker, 41 Ga. App. 380, 153 S.E. 94 (1930). Jury Charge Jury charge under statute not objectionable on grounds that it is inapplicable to processioning. - Court’s instruction to the jury that ‘‘when one has been actually in possession of land for more than seven years under a claim or right, such claim shall be respected by the processioners’’ is not objectionable on the ground that this charge is not applicable to processioning cases. Johnson v. Reeves, 133 Ga. 822, 66 S.E. 1081 (1910); Heath v. Clark, 141 Ga. 65, 80 S.E. 288 (1913). Not error to instruct as to statute and to disregard inapplicable portions. - It is not error for the judge in a processioning proceeding to instruct the jury on this section and § 44-4-6 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). Charge that jury should determine if claimed line is ‘‘true line’’ is erroneous. - It is error to instruct the jury as follows: ‘‘If you believe from the evidence that the protestant had the exclusive and continuous possession of this property to the line which he claims, and that it is the true line, for seven years, and had it up until this line was run by the processioners, then the court charges you that the processioners had no right to interfere with that line; that is the simple question for you to determine - which is the true line.’’ The phrase ‘‘and that it is the true line’’ is erroneous as it qualifies the provisions of this statute. Williams v. Giddens, 132 Ga. 342, 64 S.E. 64 (1909) (see O.C.G.A. § 44-4-7). Failure to instruct jury without request, see Jones v. Harris, 169 Ga. 665, 151 S.E. 343 (1930). No error in not charging § 44-4-6 if no evidence of acquiescence. - When there was no evidence adduced upon the trial, or any contention by the protestant in one’s protest filed to the return of the processioners, of seven years’ acquiescence

in a dividing line by acts or declarations of the adjoining landowners, as provided in former Civil Code 1910, § 3821 (see O.C.G.A. § 44-4-6), the court did not err in failing to give such theory in charge to the jury. McAlpin v. Thompson, 29 Ga. App. 495, 116 S.E. 64 (1923). Charge as to acquisition of perfect title may include charge as to acquiescence under § 44-4-6. - Trial court correctly charged in processioning case that when acquiescence and possession have continued for a seven year period, a perfect title by adverse possession was acquired. The charge was not subject to criticism in also including the principles of law relating to the fixing of a boundary line by agreement, although there was no evidence of any express agreement between the parties, since acquiescence for the period required by former Code 1933, § 85-1602 (see O.C.G.A. § 44-4-6) would be conclusive evidence of a previous agreement, though there may in fact have been none. McGinty v. Interstate Land & Imp. Co., 92 Ga. App. 770, 90 S.E.2d 42 (1955). Verdict Contrary verdict set aside if evidence shows section met. - When the undisputed evidence shows that the protestant had for more than seven years been in the actual possession of the tract bounded by the lines claimed by the protestant, under a claim of right, a verdict in favor of the applicant was contrary to law and the evidence, and should have been set aside on motion for a new trial. Robson v. Shelnutt, 122 Ga. 322, 50 S.E. 91 (1905). See also Cartledge v. Seago, 141 Ga. 113, 80 S.E. 290 (1913); Langley v. Woodruff, 144 Ga. 702, 87 S.E. 1054 (1916). Verdict set aside where processioners ignore claim of actual possession. - Since protestants had been in actual possession of land, under claim of right, for more than seven years, up to line claimed by protestants, which was marked or designated by a rock dam, a deep ditch, and a turnrow, and processioners and surveyor disregarded the possession by protestants of the land in question and undertook to locate the original line between the lots, the verdict of the jury in favor of the applicant, approving the line thus established by the processioners was unauthorized under the law and the

evidence. Aderhold v. Lambert, 67 Ga. App. 166, 19 S.E.2d 538 (1942). When the processioners ignore a claim of actual possession based on this statute and concern themselves instead only with the

original line, the jury’s verdict upholding the processioners’ return must be set aside. Osborne v. Thompson, 154 Ga. App. 215, 267 S.E.2d 852 (1980) (see O.C.G.A. § 44-4-7).

RESEARCH REFERENCES ALR. - Adverse possession involving ignorance or mistake as to boundaries - modern views, 80 ALR2d 1171.

Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48 ALR3d 818.