2020 Georgia Code
Title 44 - Property
Chapter 5 - Acquisition and Loss of Property
Article 7 - Prescription
§ 44-5-165. How Actual Possession of Lands Evidenced

Actual possession of lands may be evidenced by enclosure, cultivation, or any use and occupation of the lands which is so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another. As to any claim which is not vested under this chapter prior to July 1, 2008, no party shall attempt to establish possession of lands for purposes of this article for any lands depicted within the applicable tract identified on the official map of any railroad filed with the Interstate Commerce Commission pursuant to the Railroad Valuation Act of March 1, 1913, Stat. 701, as amended, unless such party establishes that such occupancy interferes with the operations of such railroad corporation or railroad company; provided, however, that each railroad corporation and railroad company shall file and record such official map of the railroad with the superior court for the county in which such land depicted on such official railroad map is situated. Any court of this state shall take judicial notice of the information set forth in any such official map properly filed and recorded by such railroad corporation or railroad company. This Code section shall not be applied to adverse claims of aboveground utilities which have been initiated but which have not vested prior to July 1, 2008; provided, however, that a railroad corporation or railroad company shall not be precluded from enforcing rights of ownership against any adverse claims which have not vested.

(Orig. Code 1863, § 2639; Code 1868, § 2638; Code 1873, § 2680; Code 1882, § 2680; Civil Code 1895, § 3585; Civil Code 1910, § 4165; Code 1933, § 85-403; Ga. L. 2008, p. 210, § 4/HB 1283.)

The 2008 amendment, effective July 1, 2008, added the last three sentences.

- 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 transporting 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."

ANALYSIS

• General Consideration
• Actual Possession

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).

Facts as set out by the trial court and as recited by the brothers were insufficient as a matter of law to establish that the brothers were in such notorious possession that the brothers acquired title to the riverbed by prescriptive easement or adverse possession; all of the brothers' actions were consistent with their 1976 easement, and therefore did not give notice that claimed the entire riverbed to the exclusion of others. Thomas v. Henry County Water & Sewerage Auth., 317 Ga. App. 258, 731 S.E.2d 66 (2012).

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, and44-5-165, 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); 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 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).

- 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).

- 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).

- 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).

- Property owners could not establish that the alleged installation of a sprinkler system on the disputed property by a prior owner of the owners' property somehow bolstered the owners' claim of adverse possession because there was no evidence as to how long any previous owner allegedly maintained adverse possession of the disputed property, and the installation of a sprinkler system, by itself, would not establish adverse possession under the circumstances presented in the case. Campbell v. Landings Ass'n, 289 Ga. 617, 713 S.E.2d 860 (2011).

- Trial court did not err in denying a landowner's claim that the landowner held prescriptive title to certain property by possession for a period of more than 20 years under O.C.G.A. § 44-5-163 because neither the landowner nor the landowner's spouse cultivated the property or erected any structure or fence upon the property pursuant to O.C.G.A. § 44-5-165, and the clearing of vegetation did not require a finding that possession had been established; photographs submitted in support of the landowner's claim that a pre-existing fence situated at one end of the property, together with the vegetation lines caused by the clearing and periodic mowing of the property, constituted an enclosure of the property so as to evidence possession and could allow the special master to conclude that the asserted enclosure was not so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another. Bailey v. Moten, 289 Ga. 897, 717 S.E.2d 205 (2011).

- Evidence supported the trial court's conclusion that the landowners did not own the disputed property because the landowners' occasional maintenance and use of the disputed property did not amount to the type of exclusive possession for twenty years that would support a claim for prescriptive title under O.C.G.A. §§ 44-5-161 and44-5-165. Washington v. Brown, 290 Ga. 477, 722 S.E.2d 65 (2012).

Successor in interest to the owner of property successfully redeemed the property from the purchaser of a tax deed by tendering an adequate amount, O.C.G.A. § 48-4-40(2), although it was refused by the purchaser; the court rejected the purchaser's claim that the purchaser had acquired title by prescription under O.C.G.A. § 48-4-48 because the prescriptive period was not met and the purchaser's possession of the unfenced, uninhabited property was not sufficiently adverse. Nix v. 230 Kirkwood Homes, LLC, 300 Ga. 91, 793 S.E.2d 402 (2016).

- In a boundary dispute, the evidence was sufficient for the jury to find that a landowner was entitled to judgment pursuant to prescriptive title under O.C.G.A. § 44-5-161(a) because a dam creating the disputed pond broke in 1994, and the landowner reconstructed the dam at the landowner's sole cost; the neighbors raised no objection to this act of actual possession and ownership. These acts extended to the property line set forth in the landowner's deed even though some of the disputed land was not enclosed or cultivated. Mathews v. Cloud, 294 Ga. 415, 754 S.E.2d 70 (2014).

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).

- Trial court erred in finding that a neighbor was the rightful owner of certain property because there was no evidence to support the conclusion that the neighbor owned the disputed property either by deed or by adverse possession; the legal description of the property contained in the neighbor's deed did not include the disputed property, and since the evidence showed that, at most, the neighbor made a claim to the disputed property for only eighteen years before being challenged by the landowners, the neighbor's claim to have gained prescriptive title to the property through adverse possession under O.C.G.A. §§ 44-5-161 and44-5-165 failed as a matter of law. Washington v. Brown, 290 Ga. 477, 722 S.E.2d 65 (2012).

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).

- 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 658 (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 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).

- 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 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).

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 918 (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).