O.C.G.A. § 44-4-9 (2019)

Annotations

JUDICIAL DECISIONS Analysis General Consideration Protest Trial in Superior Court Appeal General Consideration History of requirements for processioners. - Prior to Ga. L. 1901, p. 39, § 1, it was necessary for the processioners and the surveyor to trace and mark anew the lines around the entire tract of the applicant for processioning before the plat certified by the surveyor and the lines so marked should be prima facie correct. Such plat was admissible in evidence without further proof. When it appeared that the lines around the entire tract of the applicant were not surveyed and marked anew, it was proper to dismiss the entire proceeding on motion of the protestants. Russell v. Radford, 76 Ga. App. 302, 45 S.E.2d 705 (1947). Language of statute is not mandatory. Holmes v. Blount, 245 Ga. 757, 267 S.E.2d 228 (1980) (see O.C.G.A. § 44-4-9). Status of parties. - Applicants for a survey stand in the position of plaintiffs, and protestants are in the position of defendants. Moore v. Georgia Power Co., 122 Ga. App. 54, 176 S.E.2d 236 (1970). Processioning not employed to determine title. - Remedy afforded by the law of processioning assumes that each of the contending parties has title to that party’s property, and is never employed to determine that one of the parties has and the other has not title. Boatright v. Tyre, 112 Ga. App. 179, 144 S.E.2d 471 (1965). Processioners cannot establish new lines. Processioners power and authority extends to retracing and establishing old lines, al-

ready existing. Jarrard v. Wildes, 87 Ga. App. 30, 73 S.E.2d 116 (1952). Until line is run and marked by processioners, no protest can be made. Amos v. Parker, 88 Ga. 754, 16 S.E. 200 (1892); Russell v. Radford, 76 Ga. App. 302, 45 S.E.2d 705 (1947). Survey of other boundaries unnecessary. - When the only dispute is over the dividing line between two tracts of land, a survey of other boundaries is unnecessary. Groover v. Durrence, 36 Ga. App. 543, 137 S.E. 299 (1927). Complete surveys of entire tracts not objectionable. - When the application to the processioners was to mark anew only the boundary line between two tracts, and the notice to the adjoining landowner, who is the protestant, indicated that such boundary line only was to be marked anew, it is no objection to the return of the processioners that the processioners made complete surveys of the entire tracts. McAlpin v. Thompson, 29 Ga. App. 495, 116 S.E. 64 (1923). Plat and return both essential. - Plat of the surveyor and the return of the processioners are both necessary parts of the proceedings, and neither is complete without the other. This is especially true if the return is incomplete in itself and refers to the plat for a description of the boundary line fixed by the processioners. Reynolds v. Kinsey, 50 Ga. App. 385, 178 S.E. 200 (1935). Inconsistency with deed. - What appears in a deed in a party’s chain of title is not always indicative of those physical facts in

accordance with which processioners must perform the processioners’ duty of remarking lines previously designated upon the earth’s surface. Such instruments then may be inconsistent with the line remarked, but not at all in a legal sense inconsistent with the result of the trial of a protest to a return of processioners. Boatright v. Tyre, 112 Ga. App. 179, 144 S.E.2d 471 (1965). Spouses both bound where joint owners. - Where a husband and wife were in possession as joint owners of a life estate in land, and due notice was served on the wife alone, by the owner of adjoining lands, of the adjoining landowner’s intention to have the lines between the respective lands marked by processioners and on the appointed day the processioners proceeded to locate the line, and the husband, who was without due notice, was present and protested against the legality of the proceeding and afterwards the wife filed a protest, the husband was present at trial and testified as a witness, both will be bound by the judgment. By the terms of this statute the husband, if dissatisfied, could have filed his protest or intervened on the trial of the issue formed by the protest of the wife. Cartledge v. Ashford, 152 Ga. 674, 110 S.E. 907 (1922) (see O.C.G.A. § 44-4-9). Res judicata effect of processioning. - When a property owner never makes an effective protest, the processioning acquires no res judicata effect. Purcell v. C. Goldstein & Sons, 166 Ga. App. 547, 305 S.E.2d 10 (1983). Property owner was not entitled to rely on the property line established by the processioners when erecting a fence, even though abutting owners failed to protest the processioners’ return. O.C.G.A. § 44-4-9 is not mandatory and no protest having been filed, the processioning acquired no res judicata effect. Thus, reliance on the processioners’ lines did not shield the owner from liability for trespass. Wisenbaker v. Warren, 196 Ga. App. 551, 396 S.E.2d 528 (1990). Cited in Tucker v. Roberts, 151 Ga. 753, 108 S.E. 222 (1921); McAlpin v. Thompson, 29 Ga. App. 495, 116 S.E. 64 (1923); McCollum v. Thomason, 32 Ga. App. 160, 122 S.E. 800 (1924); Groover v. Durrence, 36 Ga. App. 543, 137 S.E. 299 (1927); Milligan v. Hale, 88 Ga. App. 70, 76 S.E.2d 29 (1953); Irby v. Raley, 88 Ga. App. 807, 78 S.E.2d 72

(1953); Oliver v. Irvin, 105 Ga. App. 844, 125 S.E.2d 695 (1962); Darnell v. Betty’s Creek Baptist Church, 230 Ga. 461, 197 S.E.2d 714 (1973); Watkins v. Chappell, 173 Ga. App. 819, 328 S.E.2d 223 (1985); Shelton v. Long, 177 Ga. App. 534, 339 S.E.2d 788 (1986). Protest Protest irrelevant when return not used to establish lines. - When the identity of a parcel of land is in question, if one party should, in order to prove the location of the land lines, offer a report of processioners, it would be relevant for the opposite party to show that the party had filed a protest to the return, and that the issue thus arising had not been determined. However, the protest is without relevancy when no effort is made to establish the lines by the return of the processioners, though the surveyor and others who assisted in the processioning are sworn as witnesses and testify as to facts as to which they acquired information by reason of the survey. Hunter v. State, 7 Ga. App. 668, 67 S.E. 894 (1910). Protest must be filed with probate judge, not superior court clerk. - Requirement of filing a protest with the ordinary (now probate judge) within 30 days after the processioners had filed their returns was not complied with by filing such a protest with the clerk of the superior court, although the ordinary (now probate judge) may have told the dissatisfied landowner to file the protest with the clerk if the ordinary (now probate judge) should be busy. A protest so filed, and which was never filed with the ordinary (now probate judge), should have been dismissed on motion. Moore v. Hood, 131 Ga. 479, 62 S.E. 586 (1908). Judge need only transmit papers and is presumed to have done so. - When a protest is filed to the return of processioners, it is not necessary that the ordinary (now probate judge) should make any written report of the transmission of the papers to the clerk of the superior court, but it is only necessary that the ordinary (now probate judge) perform the physical act of such transmission. The presumption is that the ordinary (now probate judge) did the duty in respect thereto. Norman, Timmons & Co. v. Smith, 131 Ga. 69, 61 S.E. 1039 (1908).

Protest (Cont’d) Protest legally sufficient. - Protest set forth what the true line was alleged to be, namely, that line shown on an earlier recorded plat. Therefore, the protest was legally sufficient. Page v. Guin, 187 Ga. App. 143, 369 S.E.2d 517 (1988), aff ’d, 190 Ga. App. 357, 378 S.E.2d 736 (1989). Protest amendable at any stage of proceedings. - Right of amendment exists at any stage of the cause, in all respects, whether in matter of form or substance. Rattaree v. Morrow, 71 Ga. 528 (1883); Ogletree v. Cathrall, 110 Ga. App. 100, 137 S.E.2d 799 (1964). Protest, like any other defensive pleading, may be amended at any stage of the cause. Earney v. Owen, 213 Ga. 412, 99 S.E.2d 201 (1957). Landowner may not protest loss of land called for in deed. - Landowner affected by the return of processioners cannot, when protesting against the return, be heard to complain that, as a result of the land lines marked anew as previously established, the landowner is deprived of land to which the landowner is entitled and which the landowner’s deed calls for. McAlpin v. Thompson, 29 Ga. App. 495, 116 S.E. 64 (1923). Improper dismissal for trial court’s invalid styling of case. - When the only pleadings plaintiff filed prior to the superior court’s docketing of the case consisted of the application for processioning and other papers in the probate court properly alleging defendant in the natural person of the executrix of adjoining estate, and it was the trial court which docketed the case under an invalid case style and not the plaintiff, it was error to dismiss the case on the ground that the case was not filed against a legal entity since the style of the case was apparently chosen by the superior court itself and could have been amended to reflect the true status of the litigation. Bennett v. L.L. Blocker Estate, 207 Ga. App. 760, 429 S.E.2d 147 (1993). Trial in Superior Court Requirements for jurisdiction over protest. - Until a line is run and marked by the processioners, no protest can be made, and without such protest duly made there is no authority of law for returning the papers to the superior court or for any trial in that

court touching the action of the processioners. The consent of the parties will not dispense with an actual running and marking of the line. Amos v. Parker, 88 Ga. 754, 16 S.E. 200 (1892). In order to give the superior court jurisdiction over a protest to a return of processioners, it is necessary that a majority of the processioners with the surveyor shall have actually traced and marked the disputed boundary lines. Russell v. Radford, 76 Ga. App. 302, 45 S.E.2d 705 (1947). Without protest duly made there is no authority of law for returning the papers to the superior court, or for any trial in that court touching the action of the processioners. Amos v. Parker, 88 Ga. 754, 16 S.E. 200 (1892); Russell v. Radford, 76 Ga. App. 302, 45 S.E.2d 705 (1947). Effect on jurisdiction of return when portion of line not surveyed and marked anew. - It may be that if the return of the processioners, including the plat, showed a failure to ascertain the boundaries of the entire tract, and mark the boundaries, the court would have no jurisdiction to take further cognizance of the case. Rattaree v. Morrow, 71 Ga. 528 (1883). When it appears from the evidence on the trial of the issues made by a protest to the return of processioners that the processioners and surveyor did not survey and mark anew a portion of the line in dispute described in the application to the processioners, their return is without legal effect under the provisions of the processioning law, and the superior court is without jurisdiction to establish any dividing line between the parties. Russell v. Radford, 76 Ga. App. 302, 45 S.E.2d 705 (1947). Remarking of old line is sole issue. - In the trial of a protest to a return of processioners the issue is solely as to the remarking of the old line. Boatright v. Tyre, 112 Ga. App. 179, 144 S.E.2d 471 (1965). Protest not specifying desired changes in lines subject to dismissal. - Protest which fails to specify therein the lines objected to and which fails to specify the true lines as claimed by the protestant is subject to general demurrer (now motion to dismiss) and is properly dismissed by the trial court on oral motion of counsel for the applicant. Edenfield v. Lanier, 77 Ga. App. 535, 48 S.E.2d 777 (1948).

Case remains pending although protest dismissed. - Dismissal of a protest is substantially equivalent to the dismissal of an answer and leaves the case still pending in the superior court until disposed of by entry of the final judgment. Moore v. Georgia Power Co., 122 Ga. App. 54, 176 S.E.2d 236 (1970). When issues of fact exist dismissal is error. - When issues of fact are involved as to the true land line between adjoining landowners, it is error to sustain general demurrers (now motions to dismiss) of the applicant to written protest by landowners to the return of the processioners and for the court not to hear evidence on the issues thus formed. Hitchcock v. Defreese, 99 Ga. App. 700, 109 S.E.2d 631 (1959). Applicant may open and conclude argument. - In the trial of a protest to the return of processioners, the applicant for processioning stands in the place of a plaintiff or movant in an ordinary cause, and is entitled to open and conclude the argument. Reynolds v. Kinsey, 50 Ga. App. 385, 178 S.E. 200 (1935). Deeds in chain of title admissible. - In the trial of a protest to a return of processioners, deeds in a party’s chain of title to land the boundary line of which is in dispute are generally admissible into evidence as bearing upon the question of the identity and location of the boundary between the coterminous owners. Boatright v. Tyre, 112 Ga. App. 179, 144 S.E.2d 471 (1965). Admissibility of return where variance exists as to description of processioners’ district. - In an issue formed upon a protest to the return of processioners, it was not error to refuse to exclude the return from evidence on the ground that the protestant exhibited a notice as having been served on the protestant, in which notice the processioners were described as being of ‘‘the 1146th district,’’ when it appeared from the return that the processioners were of the ‘‘1146th district originally, now the 1642nd,’’ no point being raised as to the processioners authority to act. Stewart v. Jackson, 144 Ga. 501, 87 S.E. 656 (1916). Plat and return make prima facie case. - Return of the processioners and the surveyor’s plat attached thereto as a part of the return, introduced in evidence by the appli-

cants, plaintiffs in the case, constitute a prima facie case. Reynolds v. Kinsey, 50 Ga. App. 385, 178 S.E. 200 (1935); Philpot v. Wells, 69 Ga. App. 489, 26 S.E.2d 155 (1943); Boatright v. Tyre, 112 Ga. App. 179, 144 S.E.2d 471 (1965). Plat attached to the return of the processioners, together with the return, when introduced in evidence in the trial in the superior court, by the person notified, makes a prima facie case in favor of the line marked by the processioners. Crowley v. Varn, 90 Ga. App. 646, 84 S.E.2d 89 (1954). Return of processioners is deemed prima facie correct. Crowley v. Varn, 90 Ga. App. 646, 84 S.E.2d 89 (1954). Return not conclusive. - When the processioners file a plat and return and no protest is made to the plat, such plat and the lines marked thereon are only prima facie correct. Moore v. Georgia Power Co., 122 Ga. App. 54, 176 S.E.2d 236 (1970). Burden on applicant to make prima facie case. - On the issue formed by a protest to the return of processioners, the burden is on the applicant to make a prima facie case. Crowley v. Varn, 90 Ga. App. 646, 84 S.E.2d 89 (1954). Both parties have burden if each claims specific line is boundary. - When, in a processioning case, the applicant and respondent contend that the line follows a specific course shown in their respective pleadings or evidence, and the issue is whether the line runs along the course contended for by the applicant or that which the respondent maintains is correct, each party has the burden throughout the trial to prove the correctness of the party’s contentions. Dally v. Arnold, 91 Ga. App. 395, 85 S.E.2d 808 (1955). Introduction of processioners’ return shifts burden to protestant. - Burden of going forward with the evidence is shifted to the protestant, who then has the burden of showing that the line marked by the processioners is not the true line. Crowley v. Varn, 90 Ga. App. 646, 84 S.E.2d 89 (1954). Absent any other evidence, plat and return authorize verdict sustaining return. Reynolds v. Kinsey, 50 Ga. App. 385, 178 S.E. 200 (1935). Processioner may testify even if finding thereby impeached. - An objection that one of the processioners was not competent

Trial in Superior Court (Cont’d) as a witness to prove certain facts because it was in the nature of impeaching the witness’s finding, is without merit. Garrett v. Massee & Felton Lumber Co., 134 Ga. 442, 67 S.E. 1036 (1910). Evidence of protestant’s presence or absence during processioning. - On the trial of a protest to the return of the processioners there is no error in admitting evidence to show that in fact the protestant was present on the day first set and when the postponement was made, and was also present when the work began, but left before the work’s completion because the protestant was dissatisfied with the line which was being run and marked. Garrett v. Massee & Felton Lumber Co., 134 Ga. 442, 67 S.E. 1036 (1910). Judge need only charge issue, not contentions of parties. - When the issue is correctly stated, a failure to affirmatively state the contentions of the parties is not a ground for a new trial, and hence, in processioning proceedings, if the ultimate contentions of the parties and the rules of law governing the issue are correctly stated, and no request for more explicit instructions is made, it is not error to fail to charge in detail the basis of the parties’ respective claims. Payne v. Green, 84 Ga. App. 689, 67 S.E.2d 195 (1951). When all evidence supports one party judge may charge return of verdict in that party’s favor. - When all of the evidence in the case supports finding for either the contentions of the processioners or the protestant, it is not error requiring reversal to charge the jury that the jury should find in favor of the contentions of one or the other of the parties. McGinty v. Interstate Land & Imp. Co., 92 Ga. App. 770, 90 S.E.2d 42 (1955). Effect of failure to expressly charge protestant’s burden of proving protestant’s claim as to true line. - If the court has charged the jury that the issue is whether the line marked by the processioners, as shown by their plat, is the true line or whether the line claimed by the protestant, as shown by the plat filed with the protestant’s protest, is the true line, the exception to the charge that when the applicant makes out a prima facie case the burden of proof then shifts to the

protestant to show by a preponderance of the evidence that the return of the processioners is incorrect is not confusing or misleading to the jury on the ground that the court failed to charge further on the burden of proof on the protestant to prove that the line claimed by the protestant was the true line, that being the intendment of the charge as a whole. Payne v. Green, 84 Ga. App. 689, 67 S.E.2d 195 (1951). Instruction that line found by processioners might not be true one. - When it is not disputed that the processioners followed an illegal procedure in finding the line or a portion thereof by means of compromise, it is not error for the judge to instruct the jury that a line so found might not be the true line. Hackle v. Bowen, 89 Ga. App. 799, 81 S.E.2d 294 (1954). Evidence supporting line distinct from that in return. - When there is evidence to support a line distinct from that in the processioners’ return, it is not error to refuse to limit the jury’s deliberations to the issue of the validity of the processioners’ return. Efstathiou v. Sanders, 189 Ga. App. 470, 376 S.E.2d 413 (1988). Charge if part of line protested. - If the protest sets up that a particular portion of the line as run by the processioners passed through land of the protestant which had been in the protestant’s actual possession for more than seven years under a claim of right, it is not error to instruct the jury that if such is the case, the protestant must prevail as to that part of the line, and that as to the remainder of the line their verdict should be according to their finding whether the line run by the processioners or that claimed by the protestant was the true line. Stewart v. Jackson, 144 Ga. 501, 87 S.E. 656 (1916). No judgment as matter of law if substantial fact questions unresolved. - Moving party is not entitled to a judgment as a matter of law if there remain substantial issues of fact to be determined. Morgan v. Livsey, 122 Ga. App. 644, 178 S.E.2d 303 (1970). When directed verdict authorized. - When evidence upon the trial of a protest shows a substantial performance of the processioners’ duties, and in the absence of evidence to the contrary and in the absence of any evidence showing that the line re-

marked is not the true line, the direction of a verdict for the applicant is authorized. Boatright v. Tyre, 112 Ga. App. 179, 144 S.E.2d 471 (1965). Protestant may obtain verdict as to true line. - Issue in a case is not necessarily confined to the question of whether the line as marked by the processioners should be sustained, but it is permissible for the protestant to obtain a verdict setting up the true line as declared in the protestant’s protest, if the evidence shall so warrant. Robson v. Shelnutt, 122 Ga. 322, 50 S.E. 91 (1905); Norman, Timmons & Co. v. Smith, 131 Ga. 69, 61 S.E. 1039 (1908); Parrish v. Castleberry, 142 Ga. 115, 82 S.E. 520 (1914); Stewart v. Jackson, 144 Ga. 501, 87 S.E. 656 (1916); McCollum v. Thomason, 32 Ga. App. 160, 122 S.E. 800 (1924); Reynolds v. Kinsey, 50 Ga. App. 385, 178 S.E. 200 (1935); Dodson v. Knox, 89 Ga. App. 760, 81 S.E.2d 211 (1954); Earney v. Owen, 213 Ga. 412, 99 S.E.2d 201 (1957). Verdict binds parties and privies in title. - On the trial of the issue formed by the filing of the protest, a verdict which is made the judgment of the court is conclusive upon the parties and their privies in title. Moore v. Georgia Power Co., 122 Ga. App. 54, 176 S.E.2d 236 (1970). Appeal Applicant for processioning may appeal, if dissatisfied. Miller v. Medlock, 68 Ga. 822 (1882). Writ of error will not lie to the Supreme Court to correct the judgment of the superior court in a proceeding of processioning land instituted under this statute. When a writ of error in a case of that character is

brought to this court, it will, in conformity with the constitution of this state, be transferred to the Court of Appeals. Elkins v. Merritt, 146 Ga. 647, 92 S.E. 51 (1917); Guarantee Trust & Banking Co. v. Dickson, 148 Ga. 311, 96 S.E. 561 (1918) (see O.C.G.A. § 44-4-9). Which has no jurisdiction. - An application for processioning to determine a disputed land line and a protest thereto is not a case respecting title to land so as to give the Supreme Court jurisdiction. Fulford v. Johnson, 221 Ga. 338, 144 S.E.2d 526 (1965). Verdict upheld absent objection that lines were not all surveyed and marked. - Since only one line was run and marked, and the case was tried in the court below upon an issue as to the correctness of the line so marked, and no objection was made on account of the failure to survey and mark all of the lines, after a verdict finding in favor of the line surveyed and marked, the Supreme Court will not set aside such verdict as contrary to law and evidence on the ground that such failure existed in fact as shown by the evidence. Rattaree v. Morrow, 71 Ga. 528 (1883) (case decided prior to creation of Court of Appeals). Procedure after reversal on appeal. - When a dividing line established by processioners cannot be legally sustained for the reason that the processioners did not survey and mark anew a portion of such line, the appellate court will not refer the case back to the processioners to complete their survey or to make a new survey, but will reverse the case with direction that the trial judge enter an order dismissing the entire proceedings. Russell v. Radford, 76 Ga. App. 302, 45 S.E.2d 705 (1947).

RESEARCH REFERENCES Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 5 et seq. C.J.S. - 76 C.J.S., Records, §§ 1, 2.

ALR. - Necessary or proper parties to suit or proceeding to establish private boundary line, 73 ALR3d 948.