O.C.G.A. § 44-5-165 (2019)

Annotations

Editor’s notes. - Ga. L. 2008, p. 210, § 1, not codified by the General Assembly, provides: ‘‘(a) The General Assembly finds that the railroads and their rights of way in Georgia:

‘‘(1) Are essential to the continued viability of this state; ‘‘(2) Are valuable resources which must be preserved and protected; ‘‘(3) Are essential for the economic growth and development of this state; ‘‘(4) Provide a necessary means of trans-

porting raw materials, agricultural products, other finished products, and consumer goods and are also essential for the safe passage of hazardous materials; ‘‘(5) Relieve congestion on the highways and keep dangerous products and materials off our highways; ‘‘(6) Are vital for national defense and national security; and ‘‘(7) Provide the most energy efficient

means of transportation through this state, thus minimizing air pollution and fuel consumption. ‘‘(b) The purpose of this Act is to protect the rights of way of railroads from loss by claims of adverse possession or other claims by prescription and to recognize the dimensions of these rights of way as they were identified and defined nearly 100 years ago.’’

JUDICIAL DECISIONS Analysis General Consideration Actual Possession 1. In General 2. Enclosure 3. Cultivation General Consideration Scope of prescription by mere possession. - Prescription by mere possession does not extend beyond the actual possessio pedis of the prescriber. Kerlin v. Southern Bell Tel. & Tel. Co., 191 Ga. 663, 13 S.E.2d 790 (1941); Robertson v. Abernathy, 192 Ga. 694, 16 S.E.2d 584 (1941), later appeal, 195 Ga. 704, 25 S.E.2d 424 (1943); Arnold v. Shackelford, 219 Ga. 839, 136 S.E.2d 384 (1964). Requirement of continuity of possession is one of substance, not of absolute mathematical continuity, provided there is no break so as to make a severance of two possessions. Chamblee v. Johnson, 200 Ga. 838, 38 S.E.2d 721 (1946). Payment of taxes is not itself evidence of title, yet it is admissible as a circumstance tending to prove adverse possession. Chamblee v. Johnson, 200 Ga. 838, 38 S.E.2d 721 (1946). Outstanding recorded title will not prevent ripening of 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). Because the heirs produced evidence raising 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). Cited in Hunt v. Pond, 67 Ga. 578 (1881); Burr v. Toomer, 103 Ga. 159, 29 S.E. 692 (1897); Knight v. Isom, 113 Ga. 613, 39 S.E. 103 (1901); Walker v. Steffes, 139 Ga. 520, 77 S.E. 580 (1913); Connasauga River Lumber Co. v. Shippen, 293 F. 579 (5th Cir. 1923); Beeland v. Butler Payne Lumber Co., 48 Ga. App. 619, 173 S.E. 436 (1934); Sewell v. Sprayberry, 186 Ga. 1, 196 S.E. 796 (1938); Poole v. Atlanta Joint Stock Land Bank, 189 Ga. 59, 5 S.E.2d 368 (1939); Bradley v. Shelton, 189 Ga. 696, 7 S.E.2d 261 (1940); Flournoy v. United States, 115 F.2d 220 (5th Cir. 1940); Dyal v. Sanders, 194 Ga. 228, 21 S.E.2d 596 (1942); Holloway v. Woods, 195 Ga. 55, 23 S.E.2d 254 (1942); Strickland v. Padgett, 197 Ga. 589, 30 S.E.2d 167 (1944); Elliott v. Robinson, 198 Ga. 811, 33 S.E.2d 95 (1945); Toms v. Knighton, 199 Ga. 858, 36 S.E.2d 315 (1945); Smith v. Jefferson County, 201 Ga. 674, 40 S.E.2d 773 (1946); Powell v. Moore, 202 Ga. 62, 42 S.E.2d 110 (1947); Rogers v. Moore, 207 Ga. 182, 60 S.E.2d 359 (1950); Phillips v. Wheeler, 212 Ga. 603, 94 S.E.2d 732 (1956); Spillers v. Jordan, 96 Ga. App. 426, 100 S.E.2d 483 (1957); Davis v. Palmer, 213 Ga. 862, 102 S.E.2d 478 (1958);

General Consideration (Cont’d) Pridgen v. Coffee County Bd. of Educ., 218 Ga. 326, 127 S.E.2d 808 (1962); Durand v. Reeves, 219 Ga. 182, 132 S.E.2d 71 (1963); Harrison v. Morris, 108 Ga. App. 566, 133 S.E.2d 899 (1963); Reid v. Wilkerson, 222 Ga. 282, 149 S.E.2d 700 (1966); Herrington v. City of Atlanta, 224 Ga. 465, 162 S.E.2d 420 (1968); Barnett v. Holliday, 228 Ga. 361, 185 S.E.2d 397 (1971); Guagliardo v. Jones, 238 Ga. App. 668, 518 S.E.2d 925 (1999). Actual Possession 1. In General Statute indicates how actual possession is evidenced. Rowland v. McLain, 86 Ga. App. 140, 70 S.E.2d 918 (1952) (see O.C.G.A. § 44-5-165). Essence of actual possession is use of land to such an extent and in such a manner as to put the world on notice. Cheek v. Wainwright, 246 Ga. 171, 269 S.E.2d 443 (1980). Evidence of defendant’s actual adverse possession. - Evidence of color of title, continuous occupation, use of property to the exclusion of all others, construction of improvements on the land, payment of annual taxes and fire insurance premiums, cultivation of annual crops, and keeping of livestock and penalty shows that the defendant had actual adverse possession. Hughes v. Heard, 215 Ga. 156, 109 S.E.2d 510 (1959) (see O.C.G.A. § 44-5-165). Prescriptive title generally. - 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). Building a driveway insufficient. - Trial court erred in granting summary judgment on prescription and acquiescence grounds to the contestants to a tract of land without determining the validity or sufficiency of the legal descriptions of either deed to the property as there was insufficient evidence of possession and support for prescriptive title,

and the construction of a driveway, apparently on the disputed tract was interrupted by a quiet title action filed within seven years by the heirs of the property. Henson v. Tucker, 278 Ga. App. 859, 630 S.E.2d 64 (2006). Occasional cleanup and mowing insufficient. - 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). Sporadic repairs insufficient. - 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). When there is no evidence of enclosure or cultivation, notoriety and exclusivity became questions of fact for the jury. Friendship Baptist Church, Inc. v. West, 265 Ga. 745, 462 S.E.2d 618 (1995). 2. Enclosure Fencing is acceptable evidence of actual possession. Lyons v. Bassford, 242 Ga. 466, 249 S.E.2d 255 (1978). When land is bounded in a deed by the land of an adjacent owner, and if such boundary of the adjacent owner is undefined, there can be no prescription under the deed, as against such owner, rather than the actual possession of the grantee in the deed extends; on the other hand, if the deed provides that the land is bounded by an adjacent owner, and designated that boundary as the line of an existing fence, and the deed owner actually occupies the land up to the fence, when other requirements are met,

one may obtain title by prescription up to the fence which is the limit of one’s possession. Lyons v. Bassford, 242 Ga. 466, 249 S.E.2d 255 (1978). Fencing not required. Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977). Failure to maintain fence prevents required notice. - Even though the adverse possessor may have taken possession of property by fencing the property at the time the possessor purchased the property, if in fact the possessor had not maintained the fence, it did not constitute notice such as is required by the provisions of this statute. Turner v. McKee, 97 Ga. App. 531, 103 S.E.2d (1958) (see O.C.G.A. § 44-5-165). Planting trees on boundary lines and corners may be sufficient earmarks of possession. Howell v. United States, 519 F. Supp. 298 (N.D. Ga. 1981). 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. Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80, 3 S.E.2d 91 (1939). Natural barriers. - Natural barriers in part may be utilized in connection with fences provided that the barriers constitute a complete enclosure which indicates complete and notorious dominion over the land. Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80, 3 S.E.2d 91 (1965). 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, they 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 occu-

pied 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). 3. Cultivation Cultivation, tillage of soil, planting, and harvesting crop are superior indicia of possession. May v. Sorrell, 153 Ga. 47, 111 S.E. 810 (1922); Cheek v. Wainwright, 246 Ga. 171, 269 S.E.2d 443 (1980). Trees planted in rows along a public road give a clear and lasting notice that someone is exercising possession by changing the nature of the real estate. Cheek v. Wainwright, 246 Ga. 171, 269 S.E.2d 443 (1980). Use of land for timber will not alone amount to actual possession, even though the land is suitable only for such uses. McCook v. Crawford, 114 Ga. 337, 40 S.E. 225 (1901); Robertson v. Abernathy, 192 Ga. 694, 16 S.E.2d 584 (1941), later appeal, 195 Ga. 704, 25 S.E.2d 424 (1943); Rowland v. McLain, 86 Ga. App. 140, 70 S.E.2d 918 (1952); Cheek v. Wainwright, 246 Ga. 171, 269 S.E.2d 443 (1980). Use as cattle range alone will not amount to actual possession, even though the land is suitable only for such uses. McCook v. Crawford, 114 Ga. 337, 40 S.E. 225 (1901). Roaming cattle and hogs on a large area of swamp woodland does not amount to actual possession within the meaning of the law. Rowland v. McLain, 86 Ga. App. 140, 70 S.E.2d (1952); Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80, 3 S.E.2d 91 (1965). Posting signs forbidding trespassing, and driving away hunters from time to time on a large area of swamp woodland does not amount to actual possession. Rowland v. McLain, 86 Ga. App. 140, 70 S.E.2d 918 (1952); Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80, 3 S.E.2d 91 (1965). Cultivation of annual crops is not required. Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977). Cultivation is question of fact depending upon the character of possession, the extent of the visible signs of occupancy and its continuance. Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977).

RESEARCH REFERENCES Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 10 et seq., 296 et seq. C.J.S. - 2 C.J.S., Adverse Possession, § 34 et seq. ALR. - Act of trespasser as interrupting adverse possession, 22 ALR 1458. Adverse possession of railroad right of way, 50 ALR 303. Interval between crops as affecting continuity of adverse possession, 76 ALR 1492. Grantor’s continued possession of land after execution of deed as notice of his claim adverse to title conveyed, 105 ALR 845. Length of period of possession before accrual of rights of person sought to be affected by notice as affecting the rule regarding constructive notice from possession of real property, 105 ALR 892. Purchase of, or offer to purchase or to settle, outstanding title, interest, or claim as interrupting continuity of adverse posses-

sion as regards another title, interest, or claim, 125 ALR 825. Cutting of timber as adverse possession, 170 ALR 887. Adverse possession: sufficiency, as regards continuity, of seasonal possession other than for agricultural or logging purposes, 24 ALR2d 632. Acquisition of title to mines or minerals by adverse possession, 35 ALR2d 124. Grantor’s possession as adverse possession against grantee, 39 ALR2d 353. 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.