2021 Georgia Code
Title 44 - Property
Chapter 5 - Acquisition and Loss of Property
Article 7 - Prescription
§ 44-5-167. Extent of Constructive Possession Under Deed; Judicial Notice

Possession under a duly recorded deed shall be construed to extend to all the contiguous property embraced in such deed. To the extent that any such property is bounded on one or more sides by a railroad, and the description of the property contained in such deed makes reference to the railroad or the railroad right of way as a boundary for such property, such reference shall be construed to mean that the boundary line is located at the edge of the tract depicted 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, and such depictions contained on such official railroad map shall be conclusive as to the location of the boundary line between the property of the railroad and any adjoining property owner as of the date of such railroad map; 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.

(Civil Code 1895, § 3587; Civil Code 1910, § 4167; Code 1933, § 85-405; Ga. L. 2008, p. 210, § 6/HB 1283.)

The 2008 amendment, effective July 1, 2008, in the first sentence substituted "shall" for "will", substituted "such" for "the", 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."

- For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008). For comment on Campbell v. Gregory, 200 Ga. 684, 38 S.E.2d 295 (1946), see 9 Ga. B.J. 204 (1946).

JUDICIAL DECISIONS

"Contiguous" defined.

- Word "contiguous," as used in this section, means to touch. Morris v. Gibson, 35 Ga. App. 689, 134 S.E. 796 (1926).

Tracts of land which corner with one another are contiguous. Morris v. Gibson, 35 Ga. App. 689, 134 S.E. 796 (1926).

- Statute has no application to partition proceedings. Rowe v. Henderson Naval Stores Co., 143 Ga. 756, 85 S.E. 917 (1915) (see O.C.G.A. § 44-5-167).

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

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).

Person claiming under a recorded deed may have constructive possession of lands and may acquire a prescriptive title to all lands which are covered by the deed and are 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 the same deed makes independent conveyances of two or more separate and noncontiguous tracts of land, actual possession of one or more of such distinct entities as thus conveyed will not be extended by construction to include them all; but if the several tracts designated as being included by the terms of the conveyance actually adjoin or corner, so as to in fact constitute a single parcel, actual possession of a portion of the premises thus conveyed will be extended by construction to include the entire premises. Morris v. Gibson, 35 Ga. App. 689, 134 S.E. 796 (1926).

- When a builder's trucks damaged grass near a curb in front of a landowner's house, and the grass was entirely within a public right of way owned by a county, the landowner did not have standing to sue the builder for trespass based on O.C.G.A. § 44-5-167; possession under § 44-5-167 extended to the contiguous property embraced in a deed, and the landowner's deed did not embrace the right of way. Moses v. Traton Corp., 286 Ga. App. 843, 650 S.E.2d 353 (2007), cert. denied, 2007 Ga. LEXIS 743 (Ga. 2007).

- In the case of an unrecorded deed, possession will not ordinarily extend by construction beyond the possessio pedis, even as to the lot or parcel on which actual possession is maintained of a portion, unless actual possession has been maintained of a portion of the land in dispute. Campbell v. Gregory, 200 Ga. 684, 38 S.E.2d 295 (1946) commented on in 9 Ga. B.J. 204 (1946).

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 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).

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).

What is most material and most certain in description shall prevail over that which is less material and less certain. Sewell v. Sprayberry, 186 Ga. 1, 196 S.E. 796 (1938).

- Public recordation of the deed is such adequate notice to the true owner as to invest the constructive possession with the element of notoriety essential to its being adverse. Gordon v. Georgia Kraft Co., 217 Ga. 500, 123 S.E.2d 540 (1962).

- 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 one's actual adverse possession has been maintained on a part of the land in dispute; or (2) that, while one'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 one'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 one'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).

- 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).

Cited in Parker v. Jones, 57 Ga. 204 (1876); Jones v. Patterson, 62 Ga. 527 (1879); Ford v. Williams, 73 Ga. 106 (1884); Griffin v. Lee, 90 Ga. 224, 15 S.E. 810 (1892); Johnson v. Simerly, 90 Ga. 612, 16 S.E. 951 (1892); Carstarphen v. Holt, 96 Ga. 203, 23 S.E. 904 (1895); Knight v. Isom, 113 Ga. 613, 39 S.E. 103 (1901); Baxley v. Baxley, 117 Ga. 60, 43 S.E. 436 (1903); Tison v. South Ga. Ry., 8 Ga. App. 91, 68 S.E. 651 (1910); Rowan v. Newbern, 32 Ga. App. 363, 123 S.E. 148 (1924); Tucker v. Wimpey, 158 Ga. 820, 124 S.E. 692 (1924); Anderson v. Black, 191 Ga. 627, 13 S.E.2d 650 (1941); Hardy v. Brannen, 194 Ga. 252, 21 S.E.2d 417 (1942); Holloway v. Woods, 195 Ga. 55, 23 S.E.2d 254 (1942); Elliott v. Robinson, 198 Ga. 811, 33 S.E.2d 95 (1945); Knighton v. Hasty, 200 Ga. 507, 37 S.E.2d 382 (1946); Farrar v. Gulf Oil Corp., 208 Ga. 212, 66 S.E.2d 55 (1951); Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977); Wisenbaker v. Warren, 196 Ga. App. 551, 396 S.E.2d 528 (1990).

RESEARCH REFERENCES

Am. Jur. 2d.

- 3 Am. Jur. 2d, Adverse Possession, §§ 27, 16 et seq., 25 et seq., 126, 127, 256 et seq.

- 2 C.J.S., Adverse Possession, §§ 71 et seq., 111, 228 et seq., 275.

- Adverse possession of railroad right of way, 50 A.L.R. 303.

Tacking adverse possession of area not within description of deed or contract, 17 A.L.R.2d 1128.