2020 Georgia Code
Title 44 - Property
Chapter 5 - Acquisition and Loss of Property
Article 7 - Prescription
§ 44-5-166. Constructive Possession of Lands; Effect of Constructive Possession of Same Land by Adjacent Owners

1. Constructive possession of lands exists where a person who has paper title to a tract of land is in actual possession of only a part of such tract. In such case, his or her possession shall be construed to extend to the boundary of such tract. With respect to a railroad corporation or railroad company, construction of the road bed and track on the railroad right of way shall constitute actual possession and occupancy of all lands depicted within the applicable tract identified on the official map of the railroad filed with the Interstate Commerce Commission pursuant to the Railroad Valuation Act of March 1, 1913, Stat. 701, as amended; 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.
2. When land is included in the boundaries of more than one tract so that adjacent owners are in constructive possession of the same land, no prescription shall arise in favor of any of such owners.

(Orig. Code 1863, § 2640; Code 1868, § 2639; Code 1873, § 2681; Code 1882, § 2681; Civil Code 1895, § 3586; Civil Code 1910, § 4166; Code 1933, § 85-404; Ga. L. 2008, p. 210, § 5/HB 1283.)

The 2008 amendment, effective July 1, 2008, in subsection (a), substituted "such" for "the" twice, in the second sentence, deleted "a" preceding "case,", inserted "or her", and added the last two 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
• Constructive Possession
• Adjacent Owners

General Consideration

Policy of this statute.

- It is not the policy of this statute to permit the true owner of land to be disseized by equivocal possession; but, if the occupant's possession be of such a character as to announce to the world and to the true owner that one's assertion of ownership, and that possession is under a duly recorded deed, it will be construed to extend to all the contiguous property embraced therein. G.S. Baxter & Co. v. Wetherington, 128 Ga. 801, 58 S.E. 467 (1907) (see O.C.G.A. § 44-5-166).

- When separate lots are conveyed not as a single tract, this statute does not apply. Barber v. Shaffer, 76 Ga. 285 (1886) (see O.C.G.A. § 44-5-166).

- O.C.G.A. § 44-5-166 is inapplicable if one of two claimants to the disputed land had actual adverse possession of the land. Walker v. Hill, 253 Ga. 126, 317 S.E.2d 825 (1984).

- Before one can establish title by reason of possession under color of title, one must show: (1) that the writing which one claims as color of title purports to confer title upon the possessor; (2) actual possession of some portion of the tract; and (3) a claim of ownership over the portion not held in actual possession. Sewell v. Sprayberry, 186 Ga. 1, 196 S.E. 796 (1938).

- Questions of location of actual boundaries indicated by written agreement are for jury. Shiels v. Lamar, 58 Ga. 590 (1877).

- 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).

Cited in Clark v. Hulsey, 54 Ga. 608 (1875); Anderson v. Dodd, 65 Ga. 402 (1880); Wood v. Crawford, 75 Ga. 733 (1885); Johnson v. Simerly, 90 Ga. 612, 16 S.E. 951 (1892); Furgerson v. Bagley, 95 Ga. 516, 20 S.E. 241 (1894); Ault v. Meager, 112 Ga. 148, 37 S.E. 185 (1900); Crawford v. Verner, 122 Ga. 814, 50 S.E. 958 (1905); Terrell v. McLean, 130 Ga. 633, 61 S.E. 485 (1908); Dodge v. Cowart, 131 Ga. 549, 62 S.E. 987 (1908); Durham Coal & Coke Co. v. Wingfield, 142 Ga. 725, 83 S.E. 683 (1914); Rowe v. Henderson Naval Stores Co., 143 Ga. 756, 85 S.E. 917 (1915); R.J. & B.F. Camp Lumber Co. v. Strickland, 144 Ga. 445, 87 S.E. 413 (1915); Rowan v. Newbern, 32 Ga. App. 363, 123 S.E. 148 (1924); Dinsmore v. Holcomb, 167 Ga. 20, 144 S.E. 780 (1928); Beeland v. Butler Payne Lumber Co., 48 Ga. App. 619, 173 S.E. 436 (1934); Warsaw Turpentine Co. v. Fort Barrington Club, 185 Ga. 540, 195 S.E. 755 (1937); Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80, 3 S.E.2d 91 (1939); MacNeil v. Bazemore, 194 Ga. 406, 21 S.E.2d 414 (1942); Hardy v. Brannen, 194 Ga. 252, 21 S.E.2d 417 (1942); Holloway v. Woods, 195 Ga. 55, 23 S.E.2d 254 (1942); Pittman v. Pittman, 196 Ga. 397, 26 S.E.2d 764 (1943); Knighton v. Hasty, 200 Ga. 507, 37 S.E.2d 382 (1946); Castile v. Burton, 200 Ga. 877, 38 S.E.2d 919 (1946); Allen v. Bone, 202 Ga. 349, 43 S.E.2d 311 (1947); Wright v. Anthony, 205 Ga. 47, 52 S.E.2d 316 (1949); Harrison v. Durham, 210 Ga. 187, 78 S.E.2d 482 (1953); Floyd v. Carswell, 211 Ga. 36, 83 S.E.2d 586 (1954); Thurston v. City of Forest Park, 211 Ga. 910, 89 S.E.2d 509 (1955); Maxwell v. Hollis, 214 Ga. 358, 104 S.E.2d 893 (1958); Davis v. Newton, 215 Ga. 58, 108 S.E.2d 809 (1959); Gordon v. Georgia Kraft Co., 217 Ga. 500, 123 S.E.2d 540 (1962); Herrington v. City of Atlanta, 224 Ga. 465, 162 S.E.2d 420 (1968); Trammell v. Thomas, 226 Ga. 148, 173 S.E.2d 197 (1970); Pressley v. Jennings, 227 Ga. 366, 180 S.E.2d 896 (1971); Smith v. E.B. Burney Constr. Co., 231 Ga. 772, 204 S.E.2d 93 (1974); Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977); Department of Transp. v. Howard, 245 Ga. 96, 263 S.E.2d 135 (1980).

Prescription by mere possession will not extend beyond actual possessio pedis of prescriber. Hall v. Gay, 68 Ga. 442 (1882).

Ordinarily actual possession under a recorded deed of a portion of several specified tracts or lots of land which are all contiguous and lie in one body (though not expressly designated as one parcel or tract by the terms of the deed) will extend by construction so as to include the entire premises conveyed; if, however, such possession is under an unrecorded deed, constructive possession will not extend beyond the tract or lot on which actual possession is maintained. Campbell v. Gregory, 200 Ga. 684, 38 S.E.2d 295 (1946); Tucker v. Long, 207 Ga. 730, 64 S.E.2d 69 (1951).

When in a dispute over the ownership of a parcel of land between a landowner and a railroad, the railroad showed the railroad had color of title to the disputed property, based on a prior deed, the railroad did not have constructive possession of the land as a matter of law, sufficient to satisfy the requirements of adverse possession, because the deed under which it had color of title was not recorded, so any constructive possession did not extend beyond the land actually possessed, and there was a genuine issue of material fact as to what land the railroad actually possessed. Watkins v. Hartwell R.R. Co., 278 Ga. 42, 597 S.E.2d 377 (2004).

Because the neighbors' actual adverse possession was inconsistent with and prevailed over the owners' mere constructive possession under O.C.G.A. § 44-5-166(a), the trial court did not err in entering the court's judgment and decree in favor of the neighbors under O.C.G.A. § 23-3-60. Sacks v. Martin, 284 Ga. 712, 670 S.E.2d 417 (2008).

- When, in addition to actual possession, there is also a paper title to the rest of the tract, it is the actual possession which extends to the boundary. Robertson v. Downing Co., 120 Ga. 833, 48 S.E. 429, 102 Am. St. R. 128, 1 Ann. Cas. 757 (1904); Downing v. Anderson, 126 Ga. 373, 55 S.E. 184 (1906).

Possession of land by one who has an unrecorded deed from one's vendor, conveying a definitely described tract or lot of land, and who resides upon the land and cultivates a part thereof and bona fide claims the whole, is sufficient to give notice to another, who subsequently lends money to one's vendor and takes a deed to the same land to secure the loan, as to the extent and character of the occupant's title to the whole lot. Atlanta & C.A.L. Ry. v. Colbert, 171 Ga. 196, 154 S.E. 909 (1930), later appeal, 178 Ga. 450, 173 S.E. 378 (1934).

When a deed describing the land conveyed as lot 168, "containing 157 acres more or less," purports to convey the entire lot, actual possession of a portion of the lot under such a deed gives the grantee constructive possession of the entire lot. Shahan v. Watkins, 194 Ga. 164, 21 S.E.2d 58 (1942).

Under former Code 1933, §§ 85-404 and 85-405 (see O.C.G.A. §§ 44-5-166 and44-5-167), a person claiming under a recorded deed may have constructive possession of lands and may acquire a prescriptive title to all lands which were covered by the deed and were contiguous by having actual possession of a part thereof for a period of seven years. Mincey v. Anderson, 206 Ga. 572, 57 S.E.2d 922 (1950).

If there is actual possession under a deed of only a part of the property, the law construes the possession to extend to the boundary of the tract. Lyons v. Bassford, 242 Ga. 466, 249 S.E.2d 255 (1978).

Color of title will not extend beyond description contained in grant. Bradley v. Shelton, 189 Ga. 696, 7 S.E.2d 261 (1940).

- In cases involving prescription and in other cases respecting adverse possession, the element of notoriety as to an asserted constructive possession is adequately shown whenever the party asserting the adverse constructive possession shows color of title covering the land in dispute and produces proof either: (1) that the party's actual adverse possession has been maintained on a part of the land in dispute; or (2) that, while the party's actual possession may not have been maintained on a part of the land in dispute, yet it has been maintained on a portion of the tract included in the party's color of title, and that the conveyance which constitutes the color of title was duly recorded, or was otherwise brought to the knowledge (actual or constructive) of the person against whose title the adverse possession is asserted. On the other hand, if the possessor has no actual possession of any part of the tract claimed by the person against whom the adverse constructive possession is asserted, and the party's deed (though it includes the land in dispute) is not recorded and notice of the boundaries has not otherwise been given, the possessor cannot assert adverse constructive possession to the tract in dispute. Campbell v. Gregory, 200 Ga. 684, 38 S.E.2d 295 (1946).

If adjacent owners possess constructively same tract, no prescription arises in favor of either. Harriss v. Howard, 126 Ga. 325, 55 S.E. 59 (1906).

Claimant in actual possession of a part of a tract may rely upon the presumption that the claimant's possession extends to the boundaries of the tract described in the claimant's paper title, although prescription will not run in the claimant's favor as against one having like constructive possession. Martin v. Clark, 190 Ga. 270, 9 S.E.2d 54 (1940).

If the strip of land 50 feet broad is included in the deeds of both the defendant and the plaintiff, and the plaintiff is in possession of a part of the land conveyed by the deed to it, the occupancy by the defendant of a part of that strip of land 50 feet broad cannot ripen into a prescriptive title as against the other claimant. Atlanta & C.A.L. Ry. v. Colbert, 171 Ga. 196, 154 S.E. 909 (1930), later appeal, 178 Ga. 450, 173 S.E. 378 (1934).

When the parties to an action of ejectment to recover a strip of land are adjacent owners, the petition cannot seek a recovery on the theory of constructive possession by virtue of seven years' actual possession under color of title since, as between such adjacent owners, no prescription by constructive possession arises in favor of either. Robertson v. Abernathy, 192 Ga. 694, 16 S.E.2d 584 (1941), later appeal, 195 Ga. 704, 25 S.E.2d 424 (1943).

When the petitioner's predecessor in title and the defendant were in possession of a portion of the land described in their respective deeds, each was in constructive possession of the five-acre tract, and no prescriptive title could ripen in favor of the petitioner's predecessor in title. Tucker v. Long, 207 Ga. 730, 64 S.E.2d 69 (1951).

- When adjacent owners possess constructively the same tract, no prescription arises in favor of either; superiority of title aside from the prescription determines the matter. Harriss v. Howard, 126 Ga. 325, 55 S.E. 59 (1906).

- If neither party has the true title, and neither party claims prescriptive title by actual adverse possession under color of title, the rights of one who had the prior constructive possession are the superior. Allen v. Johns, 235 Ga. 667, 219 S.E.2d 369 (1975).

Party having oldest title duly recorded should prevail in cases when adjacent owners are in constructive possession of the same land. Singer v. Shellhouse, 175 Ga. 136, 165 S.E. 73 (1932).

- In a boundary dispute, constructive possession of the entirety of the tract described in a landowner's title was not defeated by O.C.G.A. § 44-5-166(b) because the deed by which the adjoining owner's heirs claimed title to the disputed land was vague and set forth no measured boundaries with respect to the property line; thus, the evidence did not establish they also constructively possessed the disputed land by virtue of their title. Mathews v. Cloud, 294 Ga. 415, 754 S.E.2d 70 (2014).