O.C.G.A. § 44-5-161 (2019)

Annotations

Cross references. - Adverse possession against cotenant, § 44-6-123. Obtaining private ways through adverse possession, §§ 44-9-1, 44-9-54, 44-9-55. Law reviews. - For annual survey of real property law, see 35 Mercer L. Rev. 257 (1983). For annual survey of zoning and land use law, see 57 Mercer L. Rev. 447

(2005). For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For note, ‘‘For Sale - One Level 5 Barbarian for 94,800 Won: The International Effects of Virtual Property and the Legality of Its Ownership,’’ see 37 Ga. J. Int’l & Comp. L. 381 (2009).

JUDICIAL DECISIONS Analysis General Consideration Requirements Right of Possessor Fraud Public, Continuous, Exclusive, Uninterrupted, and Peaceable Claim of Right Permissive Possession

PROPERTY General Consideration

Purpose. - Object of statutory provisions on prescription is to make a bad title good by compliance with the requisites; therefore, if a person buys land in good faith, believing the person is obtaining a good title, enters into possession thereof, and remains there continuously, uninterruptedly, peaceably, etc., for seven years, that possession ripens into a good title, whether the title the person purchased originally was good or not. Chandler v. Douglas, 178 Ga. 11, 172 S.E. 54 (1933); Fraser v. Dolvin, 199 Ga. 638, 34 S.E.2d 875 (1945). Statute incorporates common-law rule to quiet men’s estates that have been long in possession. Shiels v. Roberts, 64 Ga. 370 (1879) (see O.C.G.A. § 44-5-161). Prescriptive title generally. - Prescriptive title involves a failure on the part of the holder of the superior title to properly assert it within the time limited. Walker v. Steffes, 139 Ga. 520, 77 S.E. 580 (1913). In a dispute over two subdivision lots, the trial court did not err in admitting evidence that was cumulative to properly admitted evidence showing a legal property owner’s record title, and the evidence was not hearsay, as alleged by a claimant who sought title to the property by prescription; further, the evidence was relevant to the issue of whether a claimant’s adverse possession ripened into title by prescription. Smith v. Stacey, 281 Ga. 601, 642 S.E.2d 28 (2007). Applicability. - Section refers to title by prescription and has no bearing on establishing dividing lines by agreement and possession or acquiescence by acts or declarations for seven years. Bennett v. Perry, 207 Ga. 331, 61 S.E.2d 501 (1950). Statute applies equally to seven years with color of title or 20 years without. Woods v. Brannen, 208 Ga. 495, 67 S.E.2d 702 (1951) (see O.C.G.A. § 44-5-161). Applicability to right-of-way. - Record supported conclusion defendant had at all relevant times inspected, cleared, and marked defendant’s right-of-way, and in 1978 had installed a second pipeline in the right-of-way; therefore, defendant had acquired title by adverse possession. Simpson v. Colonial Pipeline Co., 269 Ga. 520, 499 S.E.2d 634 (1998). Elements of adverse possession are set out in this statute. Rowland v. McLain, 86 Ga.

App. 140, 70 S.E.2d 918 (1952) (see O.C.G.A. § 44-5-161). Possession must meet requirements of this statute. - In defining the adverse possession which may be the foundation of a prescriptive title, it is best to state the necessary elements of such possession as those elements are stated in this statute. Smith v. Board of Educ., 168 Ga. 755, 149 S.E. 136 (1929) (see O.C.G.A. § 44-5-161). Whether title was claimed under former Civil Code 1910, § 4168 (see O.C.G.A. § 44-5-163) by virtue of adverse possession for 20 years without written evidence of title, or under former Civil Code 1910, § 4169 (see O.C.G.A. § 44-5-164) by virtue of adverse possession for seven years under color of title, the possession relied upon must meet the requirements of former Code 1910, § 4169 (see O.C.G.A. § 44-5-161). Smith v. Board of Educ., 168 Ga. 755, 149 S.E. 136 (1929); Martin v. Clark, 190 Ga. 270, 9 S.E.2d 54 (1940); Moore v. Stephens, 199 Ga. 500, 34 S.E.2d 716 (1945); Flynt v. Dumas, 205 Ga. 702, 54 S.E.2d 429 (1949). Because the trial court found that there was evidence to support the special master’s determination that the contestant failed to establish prescriptive title to the disputed parcel, either under O.C.G.A. § 44-5-161(a) or O.C.G.A. § 44-5-164, and that the disputed parcel showed no signs of having been disturbed by any of the contestant’s alleged activities thereon, the trial court properly adopted the special master’s recommendations that title vested in a railroad free of any claims by the contestant, and that the contestant’s affidavits should be stricken from the deed records. Thompson v. Cent. of Ga. R.R., 282 Ga. 264, 646 S.E.2d 669 (2007). Mere use is not notice of adverse claim. - In a dispute over a landowners’ patio built on a neighbor’s land and use of a roadway over the neighbor’s land, the patio did not create a prescriptive right of way as the patio was not a road or path and the bottom part of the road was not taken by adverse possession as mere use was not notice of an adverse claim; however, as the landowner might have met the time and notice requirements to obtain a right of way by prescription for the top part of the road, summary judgment was not proper on that point. Moody v. Degges, 258 Ga. App. 135, 573 S.E.2d 93 (2002). Right of prescription is measured by actual user, and not by capacity for more

extended use, and the right does not begin to run until an actionable injury has been inflicted. Goble v. Louisville & N.R.R., 187 Ga. 243, 200 S.E. 259 (1938). Person claiming prescriptive title against cotenant has burden of showing not only the usual elements of prescription under O.C.G.A. § 44-5-161, but in addition thereto at least one of the conditions stated in O.C.G.A. § 44-6-123. Lindsey v. Lindsey, 249 Ga. 832, 294 S.E.2d 512 (1982); Wright v. Wright, 270 Ga. 530, 512 S.E.2d 618 (1999). In order for one cotenant to prescribe against another, O.C.G.A. § 44-6-123 requires actual ouster, exclusive possession after demand, or express notice of adverse possession, in addition to the usual elements of adverse possession. Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983). Because a trust’s predecessors in interest to a disputed parcel of land maintained public, exclusive, and continuous possession of that tract for the required time frames under both O.C.G.A. §§ 44-5-163 and 44-5-164, and the original grantee’s hostile possession of the property was done in good faith that a claim of right existed, the trial court did not err in adopting a special master’s award and findings that the trust owned the disputed property against the rights of a contesting neighbor. Crawford v. Simpson, 279 Ga. 280, 612 S.E.2d 783 (2005). Adverse possession is usually mixed question of law and fact. - Whether the facts exist which constitute adverse possession is for the jury to judge; whether, assuming the facts prove to be true, those facts constitute adverse possession is for the court to decide. Olsen v. Noble, 209 Ga. 899, 76 S.E.2d 775 (1953); Barnett v. Holliday, 228 Ga. 361, 185 S.E.2d 397 (1971). Questions of fact as to whether the state acquired land by adverse possession arise when the state’s claim of acquisition by adverse possession are disputed by parties producing evidence that those parties have record title to the land, that the state’s possession of the land was permissible, and that the state did not purport to have a valid claim of right to the land or give notice that the state did have a valid claim to the land. Tanner v. Brasher, 254 Ga. 41, 326 S.E.2d 218 (1985). Insufficient evidence of ouster. - By affidavit, heirs who had an ownership interest in

property showed that a cotenant did not meet the requirements of O.C.G.A. § 44-6-123 by averring that the cotenant took no action to oust the heirs from the property in question, to demand and retain exclusive possession, or to give actual notice of adverse possession; the burden shifted to the cotenant to point to a conflict on this issue, but in an affidavit, the cotenant only showed that the cotenant paid the property taxes and that the heirs did not use the property or question the cotenants right to be on the property, which did not establish an ouster or to satisfy an ‘‘express notice’’ or a ‘‘hostile claim’’ criterion, and summary judgment in favor of the heirs was proper. Ward v. Morgan, 280 Ga. 569, 629 S.E.2d 230 (2006). When state’s claim not established, opposing party’s case not barred by sovereign immunity. - When the state’s claim to land by adverse possession has not been established as a matter of law, the scope of state officials’ authority with respect to the land may not yet be determined, and the officials, therefore, may not bar the opposing party’s case on the ground of sovereign immunity for acts undertaken within the scope of the officials’ authority. Tanner v. Brasher, 254 Ga. 41, 326 S.E.2d 218 (1985). Ripening of prescriptive title not prevented by suspension of statute of limitations. - Suspension of the statute of limitations in war time when it creates no disability to sue does not prevent the ripening of a prescriptive title founded upon possession begun during the period of suspension. Roe v. Doe, 38 Ga. 439 (1868). Mandamus to require county to maintain road. - Group of landowners were properly granted mandamus relief requiring a county to maintain an adjacent road as the county had acquired title to the road by prescriptive acquisition, abandonment was not an issue, and compliance with O.C.G.A. § 32-3-3(c) did not need to be shown when a roadway was otherwise acquired by prescription; moreover, urging that a county’s failure to meet the county’s obligation to maintain public roads was an acceptable method of abandoning a roadway would encourage counties to disregard their public duty. Shearin v. Wayne Davis & Co., P.C., 281 Ga. 385, 637 S.E.2d 679 (2006). Cited in Hill v. Waldrop, 57 Ga. 134 (1876); Western Union Tel. Co. v. Georgia

General Consideration (Cont’d) R.R. & Banking Co., 227 F. 276 (S.D. Ga. 1915); Lancaster v. Treadwell, 146 Ga. 81, 90 S.E. 710 (1916); Frazier v. Swain, 147 Ga. 654, 95 S.E. 211 (1918); Johnson v. Mary-Leila Cotton Mills, 155 Ga. 344, 116 S.E. 609 (1923); Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931); McNeill v. Daniel, 174 Ga. 820, 164 S.E. 187 (1932); Chandler v. Douglas, 178 Ga. 11, 172 S.E. 54 (1933); Beeland v. Butler Payne Lumber Co., 48 Ga. App. 619, 173 S.E. 436 (1934); Vick v. Georgia Power Co., 178 Ga. 869, 174 S.E. 713 (1934); Hardin v. Pie, 179 Ga. 446, 176 S.E. 14 (1934); Kelley v. Spivey, 182 Ga. 507, 185 S.E. 783 (1936); Sewell v. Sprayberry, 186 Ga. 1, 196 S.E. 796 (1938); Reynolds v. Smith, 186 Ga. 838, 199 S.E. 137 (1938); Waters v. Baker, 190 Ga. 186, 8 S.E.2d 637 (1940); Metropolitan Life Ins. Co. v. Hall, 191 Ga. 294, 12 S.E.2d 53 (1940); Lockwood v. Daniel, 194 Ga. 544, 22 S.E.2d 85 (1942); Holloway v. Woods, 195 Ga. 55, 23 S.E.2d 254 (1942); Gooch v. Citizens & S. Nat’l Bank, 196 Ga. 322, 26 S.E.2d 727 (1943); Strickland v. Padgett, 197 Ga. 589, 30 S.E.2d 167 (1944); Elliott v. Robinson, 198 Ga. 811, 33 S.E.2d 95 (1945); Barfield v. Vickers, 200 Ga. 279, 36 S.E.2d 766 (1946); Thompson v. Fouts, 203 Ga. 522, 47 S.E.2d 571 (1948); Davis v. Newton, 215 Ga. 58, 108 S.E.2d 809 (1959); Pridgen v. Coffee County Bd. of Educ., 218 Ga. 326, 127 S.E.2d 808 (1962); Whitton v. Whitton, 218 Ga. 845, 131 S.E.2d 189 (1963); Durand v. Reeves, 219 Ga. 182, 132 S.E.2d 71 (1963); Little v. Weatherby, 220 Ga. 274, 138 S.E.2d 380 (1964); Hiwassee Land Co. v. Biddy, 222 Ga. 784, 152 S.E.2d 395 (1966); Hughes v. Heard, 215 Ga. 156, 109 S.E.2d 510 (1972); Jordan v. Robinson, 229 Ga. 761, 194 S.E.2d 452 (1972); Jordan v. Way, 235 Ga. 496, 220 S.E.2d 258 (1975); Drew v. DeKalb County, 239 Ga. 35, 235 S.E.2d 528 (1977); Arrington v. Watkins, 239 Ga. 793, 239 S.E.2d 10 (1977); Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977); Swicord v. Hester, 240 Ga. 484, 241 S.E.2d 242 (1978); Edingburg v. Citizens & S. Bank of Macon, Inc., 244 Ga. 667, 261 S.E.2d 617 (1979); Waters v. Pervis, 153 Ga. App. 71, 264 S.E.2d 551 (1980); Fuller v. Smith, 245 Ga. 751, 267 S.E.2d 23 (1980); Cheek v. Wainwright, 246 Ga. 171, 269 S.E.2d 443 (1980); Estate of

Seamans v. True, 247 Ga. 721, 279 S.E.2d 447 (1981); Ross v. Lowery, 249 Ga. 307, 290 S.E.2d 61 (1982); Larkin v. Laster, 254 Ga. 716, 334 S.E.2d 158 (1985); Simms v. Candler, 256 Ga. 163, 345 S.E.2d 37 (1986); Nebb v. Butler, 257 Ga. 145, 357 S.E.2d 257 (1987); Love v. Love, 259 Ga. 423, 383 S.E.2d 329 (1989); Addison v. Reece, 263 Ga. 631, 436 S.E.2d 663 (1993); Davis v. Merritt, 265 Ga. 160, 454 S.E.2d 515 (1995); Young v. Faulkner, 217 Ga. App. 321, 457 S.E.2d 584 (1995); Resseau v. Bland, 268 Ga. 634, 491 S.E.2d 809 (1997); Strozzo v. Coffee Bluff Marina Property, 250 Ga. App. 212, 550 S.E.2d 122 (2001); Wilbanks v. Arthur, 257 Ga. App. 226, 570 S.E.2d 664 (2002); Gigger v. White, 277 Ga. 68, 586 S.E.2d 242 (2003). Requirements Notice required. - To establish title by adverse possession, the claimant must show actual notice of the adverse claim. Coleman v. Coleman, 265 Ga. 568, 459 S.E.2d 166 (1995). Couple’s use of a dock, which was based on a common belief that the couple had the right to do so per their deed language, was permissive in nature; thus, a showing of notice of an adverse claim was required to establish a prescriptive easement under O.C.G.A. § 44-5-161. Waters v. Ellzey, 290 Ga. App. 693, 660 S.E.2d 392 (2008). Requirement of actual notice applies only to adverse claims based on the claimant’s possession by permission. Proctor v. Heirs of Jernigan, 273 Ga. 29, 538 S.E.2d 36 (2000). Requirements satisfied. - Because: (1) a landowner continuously and exclusively maintained and used the land in question for more than 20 years accompanied by a claim of right; and (2) a claim that the Dead Man’s Statute was violated lacked merit, the landowner established prescriptive title by adverse possession. Murray v. Stone, 283 Ga. 6, 655 S.E.2d 821 (2008). Requirements not satisfied. - Although the quia timet provision under which the property purchaser sought to quiet title permitted the property claimant to seek a jury trial, the special master’s error in concluding that the claimant was not entitled to a jury trial was harmless because the property claimant did not show that the case presented a question of fact requiring the intervention of a jury; the property claimant did

not show the existence of a claim to the property by virtue of adverse possession since the claimant did not show that there had been uninterrupted and continuous possession for 20 years. Gurley v. E. Atlanta Land Co., 276 Ga. 749, 583 S.E.2d 866 (2003). 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). Transferee’s payment of taxes on the property at issue in an adverse possession claim was not evidence of title and ownership and was properly excluded; the trial court’s order excluding evidence which was insufficient to show the transferee’s ‘‘possession’’ as probative of adverse possession, but allowing it insofar as it showed that the transferee had not been dispossessed of the property, was proper. Byrd v. Shelley, 279 Ga. App. 886, 633 S.E.2d 56 (2006). Recordation over the course of years of no consequence. - Claim of adverse possession, based on recordation of the various deeds over the course of eight years, in and of itself, had to fail in light of O.C.G.A. § 44-5-166(b). Double ‘D‘ bar ‘C‘ Ranch v. Bell, 283 Ga. 386, 658 S.E.2d 635 (2008). Payment of taxes and running people off land insufficient for prescriptive title. - In a quiet title action, because a ranch, that was seeking title to the disputed parcel of land, adduced no evidence that the ranch cultivated or built upon the land or enclosed or excluded others from the entire property, the special master correctly concluded that the act of posting of a few signs forbidding trespassing and driving off an occasional trespasser was insufficient to show adverse possession. Moreover, the payment of property taxes on the parcel since 1997, in and of itself, was insufficient to establish prescriptive title. Double ‘D‘ bar ‘C‘ Ranch v. Bell, 283 Ga. 386, 658 S.E.2d 635 (2008). Right of Possessor True owner deemed to be in possession unless dispossessed. - When two persons

enter onto property each claiming an interest therein, one who is the true owner or has the better title is deemed to be in possession thereof unless that one is dispossessed by the other person. Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983). Scope of prescription by mere possession. - Prescription by mere possession does not extend beyond the actual possessio pedis of the prescriber. Arnold v. Shackelford, 219 Ga. 839, 136 S.E.2d 384 (1964). Actual possession of land is notice to world of claim thereto, and one who, knowing land to be held by one person, buys the land from another, will be charged with notice of an unrecorded deed held by the party in possession. Scarbor v. Scarbor, 226 Ga. 323, 175 S.E.2d 6 (1970). Possession is presumed to be adverse and in good faith, until the contrary is shown. Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986). Law will never construe possession as tortious, unless from necessity; it will consider every possession lawful, the commencement and continuance of which is not proved to be wrongful. Ewing v. Tanner, 184 Ga. 773, 193 S.E. 243 (1937). Possession need not be held in person by one claiming prescriptive rights. Swygert v. Roberts, 136 Ga. App. 700, 222 S.E.2d 75 (1975). Tenant’s possession is that of the tenant’s landlord; and the landlord is the true possessor within the meaning of this statute. Swygert v. Roberts, 136 Ga. App. 700, 222 S.E.2d 75 (1975) (see O.C.G.A. § 44-5-161). Tenant’s knowledge. - When the landlord never had possession of the land or claimed title to the land, and did not include the land in the lease, the possession of the tenant, beyond the boundaries of the land contained in the lease, is not the possession of the landlord, even though the tenant believes the tenant is occupying only the land demised. Olsen v. Noble, 209 Ga. 899, 76 S.E.2d 775 (1953). Use by tenant inures to landlord’s benefit if it expressly or impliedly includes easement; a tenant cannot originate adverse user in the landlord’s favor if the lease does not expressly or impliedly include the easement. Olsen v. Noble, 209 Ga. 899, 76 S.E.2d 775 (1953).

Right of Possessor (Cont’d) Except if tenant’s adverse occupation not covered by lease. - An independent adverse occupation by a tenant of another’s land, not purporting to be covered by the terms of the lease, and not based upon any authorization purporting to be conferred therein by the lessor, does not inure to the benefit of the landlord. Olsen v. Noble, 209 Ga. 899, 76 S.E.2d 775 (1953). Bald trespass is entry upon lands without any right to do so and without a bona fide claim of any right to do; one so entering may receive a form of property in one’s bare possession sufficient to enable one to hold the land as against subsequent intruders, but which can never ripen into prescriptive title. Mayor of Forsyth v. Hooks, 182 Ga. 78, 184 S.E. 724 (1936); Hannah v. Kenny, 210 Ga. 824, 83 S.E.2d 1 (1954). Squatter can never gain prescriptive title to land, no matter how long the squatter holds the possession; the squatter’s possession is never considered as adverse. Mayor of Forsyth v. Hooks, 182 Ga. 78, 184 S.E. 724 (1936); Hannah v. Kenny, 210 Ga. 824, 83 S.E.2d 1 (1954). Mere squatter on a lot of land, without color of title or claim of right, cannot defeat the title of the true owner by conveying the land to other purchasers who had full knowledge of the nature and character of the title when the purchaser’s purchased the land, although the purchaser’s may have been in possession of the land for seven years under such title. Hannah v. Kenny, 210 Ga. 824, 83 S.E.2d 1 (1954). Adverse possession of church will support prescriptive title. - Possession of property for the use of a church by the constituent membership is possession of the church, and if continued adversely for the prescriptive period, will support prescriptive title. Bridges v. Henson, 216 Ga. 423, 116 S.E.2d 570 (1960). Adverse possession of adjoining strip held insufficient to establish title. - Adverse possession of an adjoining strip by successive tenants, not expressly or impliedly authorized by the landlord, who was never in possession, is not sufficient to give the landlord title to the adjoining strip. Olsen v. Noble, 209 Ga. 899, 76 S.E.2d 775 (1953).

Purchaser not entitled to possession during owner’s redemption period. - Purchaser at a tax sale is not entitled to possession during the period in which the law allows the owner to redeem; possession during that period by the purchaser cannot be as a matter of right or law. McDonald v. Wimpy, 206 Ga. 270, 56 S.E.2d 524 (1949). Act of possession not amounting to adverse possession. - Evidence that, without actual notice of the grantor’s deed to secure debt, the claimant for more than seven years had paid taxes, that on one occasion the claimant drove across the land and gathered certain botanical specimens, but that the claimant never fenced the land or any part of the land, never cultivated any of the land through a tenant or otherwise, or did any other act to indicate actual possession, disclosed no such actual possession as was necessary to show a prescriptive title as against plaintiffs in fi. fa. Yundt v. Davison, 186 Ga. 179, 197 S.E. 248 (1938). When defendant and defendant’s grantor plowed and burned fire breaks to keep fire off the land, planted trees for two or three years, not many of which lived, had the land surveyed, the corners and land lines marked, kept trespassers from getting wood off the land and kept named persons from working turpentine trees thereon, and paid taxes thereon for 12 or 14 years, but there was no dwelling or outhouse of any kind on the land, the land was not fenced, and no part of the land was in cultivation, the acts relied upon by the defendant and the defendant’s grantor did not amount to actual, open, visible, exclusive, and unambiguous possession. Memory v. Walker, 209 Ga. 916, 76 S.E.2d 698 (1953). Claimant’s possession was not adverse since claimant was incarcerated for six months during the time period claimant claims claimant adversely possessed the property and the owner averred that claimant was the caretaker of the property. Wolf v. McCollum, 240 Ga. App. 412, 522 S.E.2d 547 (1999). Beaver dams. - Landowner enjoys no prescriptive right to the continued existence of beaver dams in a creek which form a border of the landowner’s property because the dams are not erected through human

agency. Dawson v. Wade, 257 Ga. 552, 361 S.E.2d 181 (1987). Fraud Statute only contemplates fraud against true landowner. Moore v. Mobley, 123 Ga. 424, 51 S.E. 351 (1905) (see O.C.G.A. § 44-5-161). Statute includes not only mere legal fraud but also moral fraud. - This fraud is not mere legal fraud but is moral fraud, that is, something in the transaction which charges the conscience of the prescriber; an honest mistake of law cannot amount to such a fraud. Wright v. Smith, 43 Ga. 291 (1871); Brown v. Wells, 44 Ga. 573 (1872); McCamy v. Higdon, 50 Ga. 629 (1874); Virgin v. Wingfield, 54 Ga. 451 (1875); Ware v. Barlow, 81 Ga. 1, 6 S.E. 465 (1875); Ellis v. Dasher, 101 Ga. 5, 29 S.E. 268 (1897); Street v. Collier, 118 Ga. 470, 45 S.E. 294 (1903); Bower v. Cohen, 126 Ga. 35, 54 S.E. 918 (1906). In order to defeat title by prescription on the ground of fraud, it must appear that the fraud of the prescriber was such as to ‘‘charge his conscience,’’ and thus amount to actual moral fraud. Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986). Possession originating in fraud will not be presumed. Chancey v. Georgia Power Co., 238 Ga. 397, 233 S.E.2d 365 (1977). Fraud precludes adverse possession. - When, at the time of the intestate decedent’s death, the wife and children falsely informed the probate court that they were the decedent’s only heirs at law when the son was also an heir at law, an issue of fact remained as to whether the wife and children’s possession of the decedent’s property originated in fraud, which would have precluded adverse possession under O.C.G.A. § 44-5-161(a)(2). Ponder v. Ponder, 275 Ga. 616, 571 S.E.2d 343 (2002). It is enough if nothing appears indicative of fraud. McMullin v. Erwin, 58 Ga. 427 (1877). Presumption of good faith in origin of possession exists when actual possession has been shown; this would not be true if actual possession had been only alleged. Latham v. Fowler, 192 Ga. 686, 16 S.E.2d 591 (1941); Fraser v. Dolvin, 199 Ga. 638, 34 S.E.2d 875 (1945).

Good faith has relation to actual existing state of mind, whether so from ignorance, skepticism, sophistry, delusion, or imbecility, and without regard to what it should be from given legal standards of law or reason. Fraser v. Dolvin, 199 Ga. 638, 34 S.E.2d 875 (1945); McDonald v. Wimpy, 206 Ga. 270, 56 S.E.2d 524 (1949). No prescription can be based upon fraud. - If the color of title is fraudulent and notice thereof is brought home to the claimant before or at the time of the commencement of one’s possession, no prescription can be based upon the fraud. Johnson v. Key, 173 Ga. 586, 160 S.E. 794 (1931). Burden of proof. - Claimant must establish fraud in defendant or else defendant’s knowledge of fraud by someone upon whose possession one relies for one’s prescriptive title. Ross v. Central R.R. & Banking Co., 53 Ga. 371 (1874); Fraser v. Dolvin, 199 Ga. 638, 34 S.E.2d 875 (1945). Notice insufficient to constitute fraud. - When the plaintiff purchased land from the county which in turn made a bid in the land at a tax sale, it will not be adjudged that under such circumstances one who enters otherwise in good faith will be held to have been guilty of such notice of the claim of the original owner as would render one’s entry fraudulent. Dyal v. Sanders, 194 Ga. 228, 21 S.E.2d 596 (1942). Alleged fraud did not defeat adverse possession. - Upon finding that the trial court had exclusive subject matter jurisdiction, the court also properly ruled that a sibling had prescriptive title to certain property under O.C.G.A. § 44-5-164 by possessing the property under color of title for a period greater than seven years, satisfying the requirements of O.C.G.A. § 44-5-161; the fraud alleged by the other siblings did not defeat the title, as they were unaware of the fraud from 1989 to 2002. Goodrum v. Goodrum, 283 Ga. 163, 657 S.E.2d 192 (2008). Public, Continuous, Exclusive, Uninterrupted, and Peaceable ‘‘Continuous’’ means that the user shall exercise the right of possession more or less frequently according to the nature of the use to which its enjoyment may be applied. Anneberg v. Kurtz, 197 Ga. 188, 28 S.E.2d 769 (1944).

Public, Continuous, Exclusive, Uninterrupted, and Peaceable (Cont’d) ‘‘Peaceable possession’’ means possession unbroken by an ouster and is contradistinguished from disputed or hostile possession. Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986). Omission to use when not needed does not disprove continuity of use, shown by using it when needed; it is not required that a person shall use the easement everyday for the prescriptive period. Anneberg v. Kurtz, 197 Ga. 188, 28 S.E.2d 769 (1944). Applicability of continuity requirement. - Requirement of continuity of possession for a period of 20 years is applicable to any practice relied upon to vest in the prescriber the right to subject the lands of another to a particular burden or use. Vickers v. City of Fitzgerald, 216 Ga. 476, 117 S.E.2d 316 (1960), overruled on other grounds, City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994). Continuity as consisting of successive possessions of several persons in privity. - To constitute element of continuity which is essential to adverse possession as the foundation of a good prescriptive title, it is not necessary that adverse possession be maintained for the statutory period by the same person, since continuity may as effectively be shown by the successive bona fide possessions of several persons, provided the requisite privity exists between them, so as to permit attacking of their unbroken successive possessions. Blalock v. Redwine, 191 Ga. 169, 12 S.E.2d 639 (1940); Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986). In order to show privity between successive occupants, all that is necessary is that one shall have received one’s possession from the other by some act of another or by operation of law. This may be accomplished by a parol agreement or understanding, under which the actual possession of the premises is delivered, as well as by a written conveyance. Blalock v. Redwine, 191 Ga. 169, 12 S.E.2d 639 (1940); Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257, 24 S.E.2d 59 (1943). Requirement of continuity of possession is one of substance and not of absolute

mathematical continuity, provided that there is no break so as to make a severance of two possessions. Clark v. White, 120 Ga. 957, 48 S.E. 357 (1904); Walker v. Steffes, 139 Ga. 520, 77 S.E. 580 (1913); Anneberg v. Kurtz, 197 Ga. 188, 28 S.E.2d 769 (1944). There may be slight intervals in which the prescriber or the prescriber’s agent or tenant is not actually upon the land, as in cases of changing tenants, or if the nature or character of the business does not require one’s presence every day, or there may be short intervals of temporary absence of such person. Clark v. White, 120 Ga. 957, 48 S.E. 357 (1904); Walker v. Steffes, 139 Ga. 520, 77 S.E. 580 (1913). Mere bringing of an action which is dismissed and not prosecuted to a successful termination is no disturbance of possession so as to prevent a prescriptive title from ripening. Kile v. Fleming, 78 Ga. 1 (1886). Suit to which the true owner is not a party does not stop or break the continuity of adverse possession, even though the land is sold under a decree in such suit. Verdery v. Savannah, F. & W. Ry., 82 Ga. 675, 9 S.E. 1133 (1889). Joint adverse possession may create jointly acquired prescriptive title. - When two or more persons are in joint possession of real estate, and when they are jointly claiming adverse possession as against the rest of the world, they can jointly acquire prescriptive title through adverse possession. Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983). Effect of joint and mutually adverse possession. - When two or more persons without title or color of title are in joint possession of real estate, and when they are making claims to the same property adverse to each other, none has the exclusive possession necessary to establish prescriptive title through adverse possession. Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983). Tacking. - Adverse possession of land by promoters or officers of a corporation may be tacked to the adverse possession of the corporation after the corporation’s organization and incorporation. Blalock v. Redwine, 191 Ga. 169, 12 S.E.2d 639 (1940). Link in chain of prescriptive title can be formed if executor had possession in the executor’s own name before turning over the land to a devisee. Caraker v. Brown, 152 Ga. 677, 111 S.E. 51 (1922).

One may hold the possession in person or by a tenant. McMullin v. Erwin, 58 Ga. 427 (1877). Possession by a tenant or agent, under a parol understanding with the owner, will suffice to support the owner’s claim of a prescriptive title. Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257, 24 S.E.2d 59 (1943). When the uncontradicted evidence shows that the plaintiff and the plaintiff ’s immediate grantor, in whom demises were properly laid, entered in good faith and were successively in continuous adverse possession of certain property, under color of title, of the land so described, for more than seven years before the alleged ouster, the evidence demanded a finding for the plaintiff on the basis of title by prescription. Elliott v. Robinson, 192 Ga. 682, 16 S.E.2d 433 (1941). Vendee placed in possession by the vendor under a bond or contract to convey does not hold adversely to the vendor. Hines v. Rutherford, 67 Ga. 606 (1881); Allen v. Napier, 75 Ga. 275 (1885); Parrott v. Baker, 82 Ga. 364, 9 S.E. 1068 (1889); Brown v. Huey, 103 Ga. 448, 30 S.E. 429 (1898). Burden of proof for owners tacking on tenant’s prior possession time. - For owners to tack onto the period of their possession the time that the property was used by a tenant of the owner, the burden is upon the owners to show by a preponderance of the evidence that this prior possession is of such character as to be the foundation of prescription, and be adverse, and the foundation must meet all the requirements of law, including the requirement that the possession must be accompanied by a claim of right. Olsen v. Noble, 209 Ga. 899, 76 S.E.2d 775 (1953). Title acquired by continuously emptying refuse into stream. - When a person in the operation of a canning plant, has from June 1 to November 1 of each year for more than 20 years, emptied the refuse from the plant into a nonnavigable stream, the person has thereby acquired a prescriptive right so to do. Anneberg v. Kurtz, 197 Ga. 188, 28 S.E.2d 769 (1944). Easement to flood lands denied. - Railroad company which has for 25 years maintained a trestle and abutments, under which a stream flows, does not thereby acquire a prescriptive easement to flood lands, unless

such flooding has been continuous and uninterrupted for a period sufficient to ripen prescription. Goble v. Louisville & N.R.R., 187 Ga. 243, 200 S.E. 259 (1938). Long intervals between possessory periods defeats adverse possession. - When the plaintiff went into possession of a part of the land, remaining in possession only for short periods with long intervals between periods of possession, this will not meet the requirements for adverse possession. McDonald v. Wimpy, 206 Ga. 270, 56 S.E.2d 524 (1949). Possession of property under a duly recorded warranty deed is notice to the world of the possessor’s claim of title. Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986). Title insufficient absent evidence of continuous physical possession of land. - Evidence was insufficient to show that the defendant had acquired title to the strip of land in dispute by actual adverse possession for a period of 20 years since it did not show that the defendant and the defendant’s predecessors in title had been in physical or corporeal possession of such strip continuously for the period stated. Bradley v. Shelton, 189 Ga. 696, 7 S.E.2d 261 (1940). Evidence of successive occupation need not be in writing; the transfer may be accomplished by a parol agreement or understanding under which the actual possession of the premises is delivered, as well as by a written conveyance. Blalock v. Redwine, 191 Ga. 169, 12 S.E.2d 639 (1940). Complete enclosure of land indicates complete and notorious dominion over land. McCrea v. Georgia Power Co., 179 Ga. 1, 174 S.E. 798 (1934), later appeal, 187 Ga. 708, 1 S.E.2d 664 (1939). To constitute actual possession by enclosure, the land must be completely enclosed, but it is not necessary that the land should be completely enclosed on every side by artificial means, such as fences. McCrea v. Georgia Power Co., 179 Ga. 1, 174 S.E. 798 (1934), later appeal, 187 Ga. 708, 1 S.E.2d 664 (1939). Actual possession of land may consist of an enclosure of land in part by fences, high banks of a creek and by a rocky shoal, if all together they make a complete enclosure. McCrea v. Georgia Power Co., 179 Ga. 1, 174 S.E. 798 (1934), later appeal, 187 Ga. 708, 1 S.E.2d 664 (1939).

Public, Continuous, Exclusive, Uninterrupted, and Peaceable (Cont’d) Hog wire fence. - Trial court erred by concluding, as a matter of law, that defendant’s ‘‘hog wire fence’’ satisfied the notoriety and exclusivity requirements of O.C.G.A. § 44-5-161. Guagliardo v. Jones, 238 Ga. App. 668, 518 S.E.2d 925 (1999). Telephone poles and wires outline general area in use. - When poles and wires were used in the operation of a telephone line or lines over the lands of another, the poles and wires should be considered as having marked or outlined a general area in use according to the usual and ordinary manner; and if the outer limits of this space remained the same for the prescriptive period of 20 years, the resulting easement would apply at least to such general area, so that the stringing of additional wires anywhere therein consistently with customary location would be permissible as territorially within the easement, whether or not the identical space to be physically occupied by such wires had ever before been so occupied by other wires. Kerlin v. Southern Bell Tel. & Tel. Co., 191 Ga. 663, 13 S.E.2d 790 (1941). Utility company’s use of land. - Even though continuous and open possession of property for almost an entire century was subject to a power company’s limited use and was therefore not ‘‘absolutely exclusive,’’ it was consistent with ownership, and was sufficiently exclusive to satisfy O.C.G.A. § 44-5-161. Georgia Power Co. v. Irvin, 267 Ga. 760, 482 S.E.2d 362 (1997). Quitclaim deed held not impediment to adverse possession. - Quitclaim deed to the disputed property, executed 40 years earlier by plaintiff ’s decedent in favor of plaintiff ’s predecessor in title, was no impediment to decedent’s adverse possession of the property, since there was no evidence of mistake or that the decedent remained in possession after executing the deed, but there was evidence that the decedent was in possession for 30 years preceding the litigation. Brown v. Williams, 259 Ga. 6, 375 S.E.2d 835 (1989). Evidence supporting claim of adverse possession. - Indicia of ownership, including cultivating garden plots, harvesting trees, creating and maintaining roads, hunting, and excluding members of another family

from use of the property were sufficient to provide notice of the occupier’s adverse claim. Armour v. Peek, 271 Ga. 202, 517 S.E.2d 527 (1999). Evidence that the possessors and their predecessors in interest were in continued possession of the property since 1906 and that they fenced, maintained, landscaped and put the property to various exclusive uses authorized the special master’s finding that the possessors acquired prescriptive title. Childs v. Sammons, 272 Ga. 737, 534 S.E.2d 409 (2000). Trial court properly found that a church acquired prescriptive title to a portion of the disputed land bordering that of the adjacent landowners, setting a boundary line between the two parcels, upon sufficient evidence of the church’s adverse possession, the paper trail recognizing the church’s use and possession of the disputed property for the requisite time frame, and the setting of the boundary line almost 30 years earlier imputing personal knowledge to one of the owners of the adjacent land. Mobley v. Jackson Chapel Church, 281 Ga. 122, 636 S.E.2d 535 (2006). Evidence insufficient to support claim of adverse title. - Neighbor’s claims of ownership as to a tract of land was denied because the evidence did not support the neighbor’s alleged use of the tract as being continuous, exclusive, nor uninterrupted for the requisite 20-year period, and the jury could have reasonably decided that this evidence demonstrated interruption of possession or lack of continuity and exclusivity. Jackson v. Tolliver, 277 Ga. 58, 586 S.E.2d 321 (2003). Trial court did not err when the court concluded that a buyer’s tax deed did not ripen by prescription into a fee simple title because neither the buyer’s payments of taxes nor occasional cleanup and mowing areas were sufficiently notorious or exclusive as to constitute actual possession. Washington v. McKibbon Hotel Group, Inc., 284 Ga. 262, 664 S.E.2d 201 (2008). Trial court properly granted a renter summary judgment and removed an affidavit asserting adverse possession filed by the owner of the first floor of a building with regard to a 1,350 square foot space on the second floor of the building as the renter established that title was acquired via a quit claim deed, that the renter changed the

door at the base of the stairwell and had sole access to the second floor space, as well as posted no trespassing signs. The owner of the first floor failed to establish a continuous, exclusive, and uninterrupted possession of the space based on sporadic repairs made to the roof of the entire building. MEA Family Invs., LP v. Adams, 284 Ga. 407, 667 S.E.2d 609 (2008). Petition to quiet title based on adverse possession claim properly granted. - Trial court properly granted executor’s petition to quiet title based on the claim that the executor’s grandfather acquired the property through adverse possession, because the grandfather and his lineal descendants continuously occupied the property and openly declared to others that they owned the property; thus, possession of the property by the executor’s family was public, continuous, exclusive, uninterrupted and peaceable, and under a claim of right as required under O.C.G.A. § 44-5-161(a). Cooley v. McRae, 275 Ga. 435, 569 S.E.2d 845 (2002). Claim of Right Title based on adverse possession must be accompanied by claim of right. Hardison v. McCreary, 304 F.2d 699 (5th Cir. 1962). ‘‘Claim of right’’ is synonymous with claim of title and claim of ownership; while this does not mean that the possession must be accompanied by a claim of title out of some predecessor, there must be some claim of title in the sense that the possessor claims the property as the possessor’s own. Ewing v. Tanner, 184 Ga. 773, 193 S.E. 243 (1937); Allen v. Allen, 196 Ga. 736, 27 S.E.2d 679 (1943). Hostile possession or possession under claim of right are legal equivalents for all practical purposes. Ewing v. Tanner, 184 Ga. 773, 193 S.E. 243 (1937). Possession, if held under claim of right, is referred to as title, actual or supposed, under which the right of possession is claimed. Patellis v. Tanner, 199 Ga. 304, 34 S.E.2d 84 (1945). Color of title is anything in writing, purporting to convey title to land, which defines the extent of the claim. McCrea v. Georgia Power Co., 179 Ga. 1, 174 S.E. 798 (1934), later appeal, 187 Ga. 708, 1 S.E.2d 664 (1939). Color of title is a writing, upon the writ-

ing’s face professing to pass title, but which does not do it, either from a want of title in the person making the writing, or from the defective conveyance that is used - a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law. Fraser v. Dolvin, 199 Ga. 638, 34 S.E.2d 875 (1945). Squatter defined. - Person entering upon lands, not claiming in good faith the right to do so by virtue of any title of one’s own or by virtue of some agreement with someone else whom one believes to hold the title, is called a squatter. Hannah v. Kenny, 210 Ga. 824, 83 S.E.2d 1 (1954). Claim must be honestly entertained before prescription can arise under an asserted claim of right. Mayor of Forsyth v. Hooks, 182 Ga. 78, 184 S.E. 724 (1936). Honesty and good faith required. - Although a given paper may constitute color of title, no prescription can be based thereon unless the claimant entered thereunder honestly and in good faith. Johnson v. Key, 173 Ga. 586, 160 S.E. 794 (1931). An outstanding recorded title will not prevent the ripening of a title by prescription if the possessor enters in good faith under written evidence of title from another. Hearn v. Leverette, 213 Ga. 286, 99 S.E.2d 147 (1957). No paper title is necessary; nothing but actual bona fide possession, and the claimant is not required to show that the claimant went into possession bona fide. Evans v. Baird, 44 Ga. 645 (1872); Shiels v. Roberts, 64 Ga. 370 (1879); Hall v. Gay, 68 Ga. 442 (1882). Deed void for uncertainty of description cannot be foundation of color of title upon which a prescriptive title may rest. Etowah Mining Co. v. Parker, 73 Ga. 51 (1884). Evidence of claim of right or title. - Claim of right or title may be evidenced by acts or conduct in relation to the property possessed, which are inconsistent with the true owner’s title. Ewing v. Tanner, 184 Ga. 773, 193 S.E. 243 (1937); Hasty v. Wilson, 223 Ga. 739, 158 S.E.2d 915 (1967). Deed, reciting that levy under which a tax sale took place was made by a constable, is not valid as a muniment of title, but is only color of title. McDonald v. Wimpy, 206 Ga. 270, 56 S.E.2d 524 (1949). Because the heirs produced evidence rais-

Claim of Right (Cont’d) ing a material question of fact as to whether their ancestors possessed certain property for the requisite period of time under a claim of right pursuant to O.C.G.A. §§ 44-5-161(a), 44-5-163, and 44-5-165, the record owner was not entitled to summary judgment. Walker v. Sapelo Island Heritage Auth., 285 Ga. 194, 674 S.E.2d 925 (2009). Equitable claim in divorce proceeding. - Wife acquired a prescriptive title to property through adverse possession because her equitable claim to ownership in a divorce proceeding gave sufficient notice of intent to possess property adversely. Walters v. McNeese, 257 Ga. 440, 360 S.E.2d 268 (1987). Inventory of property in state entity’s records. - State’s claim of right to property is evidenced by its inclusion in an inventory of the property of the Western and Atlantic Railroad as the state is the owner of the Western and Atlantic Railroad. Seignious v. Metropolitan Atlanta Rapid Transit Auth., 252 Ga. 69, 311 S.E.2d 808 (1984). Claim of right will be presumed from assertion of dominion, particularly if the assertion of dominion is made by the erection of valuable improvements. Chancey v. Georgia Power Co., 238 Ga. 397, 233 S.E.2d 365 (1977). Judgment of probate court is color of title. - Judgment of a probate court purporting to vest title to the land of a decedent in a widow for a year’s support is generally color of title on which prescription can be based. Johnson v. Key, 173 Ga. 586, 160 S.E. 794 (1931). Sheriff ’s deed may be color of title, even though the deed is defective. Martin v. Clark, 190 Ga. 270, 9 S.E.2d 54 (1940). Claim lacking element of hostility fails to show good title. - Plaintiff did not show a good prescriptive title by seven years adverse possession under color of voluntary deed made to her by husband, intervenors’ brother, since the necessary element of hostility inherent in adverse possession was lacking, by reason of the fact that, before the lapse of seven years from the beginning of plaintiff ’s possession, plaintiff ’s vendee, defendant, in actual possession, had under the undisputed evidence recognized that his holding of the land was subject to any valid

claim of the intervenors, and plaintiff also had partly recognized their claim. Pittman v. Pittman, 196 Ga. 397, 26 S.E.2d 764 (1943). Title fails for lack of claim of right. - When the tenant of the immediate predecessor in title to the defendants used a portion of plaintiff ’s adjoining property in such a manner as to be considered an adverse use as against the plaintiffs, but the owners (defendant’s predecessors in title) during this period made no claim of a right to the use of plaintiffs’ property, and expressly denied any claim of benefit by reason of the use of their tenant, one of the essential elements of prescription is lacking, as the possession through the tenant was not accompanied by any claim of right on its part as the owner and the defendants’ own use of the property was for less than seven years. Olsen v. Noble, 209 Ga. 899, 76 S.E.2d 775 (1953). Permissive Possession Permissive possession cannot be foundation of prescription until an adverse claim and actual notice to the other party are shown. Johnson v. Key, 173 Ga. 586, 160 S.E. 794 (1931); Tanner v. John Hancock Mut. Life Ins. Co., 73 F.2d 382 (5th Cir. 1934), cert. denied, 295 U.S. 733, 55 S. Ct. 644, 79 L. Ed. 1682 (1935); Harris v. Mandeville, 195 Ga. 251, 24 S.E.2d 23 (1943); Blanton v. Moody, 265 F.2d 533 (5th Cir. 1959); Dickson v. Davis, 237 Ga. 883, 230 S.E.2d 279 (1976). Possession inceptively permissive cannot become adverse until the possessor notifies the one who placed the possessor in possession that the possessor is holding adversely. Rucker v. Rucker, 136 Ga. 830, 72 S.E. 241 (1911). It is necessary that, during the whole time required for the ripening of prescription, there should be something to give notice that another is doing such acts or holding out such signs as to indicate the existence of a possession adverse to the true owner. Clark v. White, 120 Ga. 957, 48 S.E. 357 (1904); Walker v. Steffes, 139 Ga. 520, 77 S.E. 580 (1913). Private way may not be acquired by prescription if use of the private way is with the owner’s permission until an adverse claim is made and actual notice is given to the owner or party in possession. Greer v. Piedmont

Realty Invs., Inc., 248 Ga. 821, 286 S.E.2d 712 (1982). Possession was permissive during period when parties went into possession of their tract under an oral agreement to purchase the land from the owner, and did not receive a deed to the property until the purchase price was paid; they could not prescribe against the vendor until the purchase money was paid in full. Burk v. Tyrrell, 212 Ga. 239, 91 S.E.2d 744 (1956). Permissive possession prevents prevailing under theory of adverse possession. Foster v. Adcock, 207 Ga. 201, 60 S.E.2d 334 (1950). Permissive possession is presumed to be for another, the rightful owner. Ewing v. Tanner, 184 Ga. 773, 193 S.E. 243 (1937). If personalty of tenant is left behind by the tenant, possession by the landlord is permissive, and cannot be the foundation of a prescription until an adverse claim and actual notice to the other party. Cozart v. Johnson, 181 Ga. 337, 182 S.E. 502 (1935). Possession by heirs. - Possession by heirs is permissive, not adverse, and no prescription can be based on such possession as against the grantees in security deeds. Boswell v. Underwood, 106 Ga. App. 675, 127 S.E.2d 870 (1962). When an heir, in possession, held under a deed from the other heirs of the grantor, who had executed a security deed to the plaintiff and, as an heir personally, still owned and claimed in part only by descent from the grantor in plaintiff ’s security deed, that heir ‘‘stood in the shoes’’ of such grantor, and could not set up an adverse prescriptive title against the plaintiff grantee in the security deed. Sweat v. Arline, 186 Ga. 460, 197 S.E. 893 (1938). Possession and valuable improvements alone are not sufficient bases for prescriptive claim in favor of a grantor against a grantee because the possession is permissive, and any improvements put on the land by the grantor accrue to the benefit of the grantee in the absence of a bona fide adverse claim of title and notice to the grantee. Fuller v. Calhoun Nat’l Bank, 59 Ga. App. 419, 1 S.E.2d 86 (1939). No prescriptive right acquired by permissive encroachment. - When the plaintiff and her husband had encroached upon lands now owned by the defendant with the permission of the previous owner, the plain-

tiff did not acquire any prescriptive right by the permissive encroachment made upon such lands since neither the plaintiff nor her husband gave notice at any time that they were claiming adversely to the rights of the defendant. McClung v. Schulte, 214 Ga. 426, 105 S.E.2d 225 (1958). Grantor who never surrenders possession to grantee does not hold adversely to grantee. Jay v. Welchel, 78 Ga. 786, 3 S.E. 906 (1887); Melson v. Leigh, 159 Ga. 683, 126 S.E. 718 (1925). Vendor does not hold adversely to vendee if the vendor sold property to his wife and continued in possession without making her a deed thereto as he promised. McArthur v. Ryals, 162 Ga. 413, 134 S.E. 76 (1926). Adverse possession not sustained against security deed holder. - One in possession of property who makes payments to the holder of a security deed on the property, such payments being either rent or payments on an indebtedness that the property itself secured, cannot sustain a claim of adverse possession against the security deed holder as a matter of law. Dickson v. Davis, 237 Ga. 883, 230 S.E.2d 279 (1976). No adverse possession if possessor of property admits making payments of rent to record title holder. Dickson v. Davis, 237 Ga. 883, 230 S.E.2d 279 (1976). Acquiescence to division line between land of coterminous proprietors not mere permissive possession. - If location of the line between two coterminous proprietors is uncertain, and the proprietors, conceding the title of each to each one’s separate lot, erect at joint expense a fence intended as marking the line of division, and both acquiesce therein by exercise of actual possession up to the fence, such possession of each is in right of the possessor and, being so, is not mere permissive possession within the meaning of this statute. Lockwood v. Daniel, 193 Ga. 122, 17 S.E.2d 542 (1941) (see O.C.G.A. § 44-5-161). Possession is not permissive if the evidence shows a claim of right under an equitable title based upon an oral contract of sale, the payment of a valuable consideration, and the erection of valuable improvements. Serritt v. Johnson, 223 Ga. 620, 157 S.E.2d 484 (1967). Tenant at sufferance is not in possession by permission of the landlord, but as a result

Permissive Possession (Cont’d)

Wilkerson, 222 Ga. 282, 149 S.E.2d 700 (1966).

of the tenant’s laches or neglect. Reid v. RESEARCH REFERENCES Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, § 10 et seq. C.J.S. - 2 C.J.S., Adverse Possession, §§ 1, 29 et seq. 31 C.J.S., Estates, § 79. ALR. - Adverse possession by third party or stranger of property held in trust, 2 ALR 41. Writing as essential to color of title in adverse occupant of land, 2 ALR 1457. Adverse possession of common, 9 ALR 1373. Act of trespasser as interrupting adverse possession, 22 ALR 1458. Adverse possession of railroad right of way, 50 ALR 303. Adverse possession or prescription as affected by owner’s informal consent subsequent to hostile entry, 65 ALR 128. May adverse possession be predicated upon use or occupancy by one spouse of real property of other, 74 ALR 138. Interval between crops as affecting continuity of adverse possession, 76 ALR 1492. Adverse possession due to ignorance or mistake as to boundaries, 97 ALR 14. Tenant’s adverse possession or use of third person’s land not within the description in the lease as inuring to landlord’s benefit so as to support latter’s title or right by adverse possession or prescription, 105 ALR 1187. Adverse possession or prescription in respect of burial lot, 107 ALR 1294. Use by public as affecting acquisition by individual of right of way by prescription, 111 ALR 221. Adverse possession as against remainderman during life estate as affected by fact that conveyance by life tenant purported to cover fee, 112 ALR 1042. Purchase of, or offer to purchase or to settle, outstanding title, interest, or claim as interrupting continuity of adverse possession as regards another title, interest, or claim, 125 ALR 825. Adverse possession by stranger as against mortgagee, 136 ALR 782. Cutting of timber as adverse possession, 170 ALR 887. Title by adverse possession as affected by recording statutes, 9 ALR2d 850.

Tacking adverse possession of area not within description of deed or contract, 17 ALR2d 1128. Adverse possession: sufficiency, as regards continuity, of seasonal possession other than for agricultural or logging purposes, 24 ALR2d 632. Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 ALR2d 1214. Acquisition of title to mines or minerals by adverse possession, 35 ALR2d 124. Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 ALR2d 986. Grantor’s possession as adverse possession against grantee, 39 ALR2d 353. Title by or through adverse possession as marketable, 46 ALR2d 544. What acts, claims, circumstances, instruments, color of title, judgment, or thing of record will ground adverse possession in a life tenant as against remaindermen or reversioners, 58 ALR2d 299. Judgment or decree as constituting color of title, 71 ALR2d 404. Adverse possession of land by personal representative as against deceased owner’s heirs or devisees, 73 ALR2d 1097. Adverse possession involving ignorance or mistake as to boundaries - modern views, 80 ALR2d 1171. Adverse possession based on encroachment of building or other structure, 2 ALR3d 1005. Acquisition of title to land by adverse possession by state or other governmental unit or agency, 18 ALR3d 678. Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48 ALR3d 818. Owner’s surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse possession, 76 ALR3d 1202. Fence as factor in fixing location of boundary line - modern cases, 7 ALR4th 53.