Freeman v. Nelson

138 Ga. App. 697 (1976)

227 S.E.2d 475

FREEMAN v. NELSON.

51600.

Court of Appeals of Georgia.

Argued January 6, 1976.

Decided May 20, 1976.

Ham, Mills & Freeman, W. Franklin Freeman, Jr., for appellant.

Harold E. Martin, for appellee.

PANNELL, Presiding Judge.

1. Established lines and not new ones are to be fixed in a processioning proceeding; the location of lines, not as they ought to be, but as they actually exist, is to be sought (Bowen v. Jackson, 101 Ga. 817 (29 SE 40); Crawford v. Wheeler, 111 Ga. 870 (36 SE 954)); that is, those which can be taken as formerly located and established. Pearre v. Wilkinson, 181 Ga. 619 (183 SE 626). Processioners have jurisdiction and authority only to ascertain and mark anew the old lines which have previously been designated on the surface of the earth; they cannot set up a line otherwise; they cannot set up a line merely shown in a deed or plat, or compromise line not designated on the earth's surface. Anthony v. Wright, 76 Ga. App. 425 (46 SE2d 194).

2. While in cases where the "corners are established, and the lines not marked, a straight line, as required by the plat, shall be run," (Code § 85-1601); yet "an established marked line, though crooked, shall not be overruled," Id., see also Cleveland v. Treadwell, 68 Ga. 835.

3. Where, as in the present case, upon the trial of a protest to the processioners' findings in a superior court, it appears from testimony of the processioners themselves that they disregarded evidence as to an agreement on a line, or evidence of possession, and sought only to *698 ascertain an original land lot line as they considered that was what they were supposed to do and found two corners and ordered a survey in a straight line between those points (see Bradley v. Chattanooga Iron & Coal Co., 144 Ga. 478, 479 (3a) (87 SE 465)), such action constitutes a good ground of protest and a verdict on trial of the protest of their return should be set aside. See Langley v. Woodruff, 144 Ga. 702 (87 SE 1054).

4. However, where the evidence also shows without dispute that the parties did agree on a line after a dispute arose between them we will not reverse for a new trial on the above ruling, but reverse for refusal to grant to the protestant his motion for judgment notwithstanding the verdict based upon a plat agreed to by the parties establishing and marking a line different from the land lot line.

The agreement consisting of a plat showing a line drawn and the distances given between three concrete blocks and an oak tree, was dated October 9, 1972, and recited "concrete blocks set in [1966] as agreed line and confirmed today by abutting land owners.", and signed by the parties is clearly an agreement as to a dividing line between coterminous owners; and is a matter for construction by the court, and not a matter for the jury to decide or construe. An agreement as to a line entered into between abutting land owners, as a result of a dispute between them as to the location of the dividing line between them is an agreement as to a dividing line and needs no construction as to what kind of line it is. Black's Law Dictionary, 4th Edition, defines the word "line" as: "The boundary or line of division between two estates.", nor will the self-serving declaration of the appellee that he intended the agreement to be one merely permitting the appellant to "use" a part of his land up to the agreed line. To do so would permit the appellant to convert the agreement to one of landlord and tenant, and contradict its very terms by parol. See Code § 38-501. This is particularly true when we consider the agreement, though short, was drawn by an attorney. It was error to submit the construction of the contract or agreement to the jury, and not direct a verdict for the line agreed upon by the parties. The judgment is reversed with direction *699 that a judgment notwithstanding the verdict be entered accordingly.

Judgment reversed with direction. Marshall and McMurray, JJ., concur.

This is an appeal from a judgment of the Superior Court of Butts County based upon the finding of a jury as to a dividing line between adjoining landowners on a protest by the appellant here in a processioning proceeding in the court below. The processioners and the jury found a north and south land lot line as the dividing line based upon a finding of two corners of the land lot and the surveying of a straight line between the corners, which resulted in a line being drawn between gasoline pumps on appellant's side [east] of the drawn line with the service station of the appellant on the appellee's [west] side of this line.

The deed to the protestant-appellant, Howell Freeman, from his father on February 23, 1956, described the land conveyed as being in a numbered land district in the county containing 100 acres, more or less, bounded by the lands of certain named parties, including the predecessor in title of the applicant-appellee, on the west. The deed to the applicant-appellee, Jack B. Nelson, from his father described the land conveyed as being in a numbered land district in the county containing 105 acres, more or less, bounded by the lands of certain named parties, including the protestant-appellant and the Southern Railway on the east. The Southern Railway cuts across the northeast portion of the applicant's lands, the disputed line being south of the railroad right-of-way. No land lot was mentioned, nor any metes and bounds given in either deed other than being bounded by the lands of the named parties. An old plat, dated in 1909, of the lands of the applicant's predecessors in title indicated the east *700 line of the applicant's land to be a land lot line.

There was introduced in evidence an agreement signed by the parties. This document had at the top of it a map or plat of the contested area showing a line drawn between three squares and an oak tree with distances between and showing the applicant's filling station as east of this line, and with the northerly end of the line approximately on the southwesterly right-of-way line of the Southern Railway. Appearing on this paper below the map, or plat, was the date "10-9-72." Below that was "Not drawn to scale," and then the following: "Concrete blocks set in `59 as agreed line and confirmed today by abutting land owners." It was signed by Jack Nelson, the appellee, and Howell Freeman, the appellant. Witnesses were N. J. Freeman and a Notary Public, Ben Garland, who was also attorney for appellee Nelson.

The evidence is undisputed that the three concrete blocks were placed in concrete and that they are still there. The same blocks were shown on a more recent and accurate survey introduced into evidence. One of the more recent surveys showed four blocks; however, it was stipulated one of the "blocks" was the oak tree. Appellee admits the execution of the agreement and the placing of the blocks but contends the agreement was merely to determine a line to which the appellant was permitted to encroach or use, and he so testified. It was also stipulated that the blocks were placed in 1966 rather than in 1959.

Clint Freeman, a brother of the appellant, testified that he was familiar with the property lines and he testified that the appellee and another boy he knew put some cement blocks along where appellee said the line was; that the appellee made the mark and helped put the blocks in; that the abutting owners were having some trouble trying to decide where the line was and that when the new line was established by putting the blocks this line was down towards the appellant's land from an old hedgerow and fence, and that the fence was moved over to the concrete blocks or a new fence was put there; later on, the appellee contended the concrete blocks had been moved and that was the time when the appellee's *701 attorney, Ben Garland, was present, and that the parties decided the blocks hadn't been moved and they were still on the line, and that Mr. Garland made a plat; that the parties that day agreed on the line and signed the paper that Mr. Garland fixed for them.

The attorney who drew the plat and the agreement testified that he went to the location with his client, Mr. Nelson, the appellee, and Mr. Freeman, the appellant, and Freeman's father, and an effort was made to go back up further behind Mr. Freeman's house and get a starting point and come back, but they were never able to locate the starting point which would be south and the whole dispute narrowed down to just this distance that is represented by the drawing, and it appeared that the only thing needed to be done at that time was to establish this line and that is what they tried to do; that he wasn't there when the blocks were set on the previous occasion and that both parties willingly signed the agreement; that he could not recall specific conversations and statements or words, but he put what he felt was the thinking of the parties in the document; that he had no recollection as to the appellee saying anything about the line being the line to which the appellant could use the appellee's property; that he didn't remember the word "use" being used; that it could have been; that while he could not recall specific words, the substance of what the parties said was that this line that he drew, which connected one block to another, was the agreed line of the abutting property owners; that Mr. Nelson contended that Freeman was encroaching on him; that the instrument he drew was not a deed but was just an agreed land line.

The appellant testified that in 1956, in order to keep some cows fenced in he and his father built a fence on what he considered the line to be and that they used and maintained the property up to that fence; and that the appellee's father farmed and planted cotton up to that fence, and that appellee's father who sold the property to the appellee agreed with the appellant and his father when they put the fence up that this was the location of the line between the properties, that this fence was further to the west than the line agreed upon by the placing of the concrete blocks. He then stated that his *702 uncle, Clint Freeman, and one Elan Epps and Jack Nelson and his daddy and Arthur Freeman all helped to put up the concrete blocks and that these blocks constituted an agreed line between the abutting landowners because of dispute as to the proper line; that after the blocks were installed and in the summer of 1972, the Nelsons put a fence along the agreed line and that October, 1972 was when Mr. Garland, the attorney, came into the picture on the contention of appellee Nelson that the concrete blocks had been moved; that the concrete blocks were found in place and that he and Nelson both wanted some record at the courthouse and the attorney was asked to handle this matter, which resulted in the agreement above referred to; that the fence which was put up in 1956 is still partly there but is on the ground; that the filling station was built in 1962, and was built on his side of this fence.