2025 Code of Georgia
Title 44 - Property (Chs. 1 — 17)
Chapter 4 - Determination of Boundaries (Arts. 1 — 2)

Annotations

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, annotations decided under former Code 1882, §§ 2384 – 2393, former Civil Code 1910, §§ 3817 – 3826, former Code 1933, §§ 85-1601 – 85-1610, and former O. C. G. A. § 44-4-1 et seq. are included in the annotations for this chapter.

Applicability to lands in cities and towns. —

Law authorizes proceedings thereunder to mark land lines of rural land, but not of lands located inside the corporate limits of cities or towns. In actions to recover land, whether rural or city, when title is otherwise shown, acquiescence by acts or declarations for seven years in a dividing line by adjacent owners establishes such line as the true line. Former Code 1933, § 85-1602 (see now O. C. G. A. § 44-4-6) was applicable in such cases. Veal v. Barber, 197 Ga. 555, 30 S. E.2d 252, 1944 Ga. LEXIS 313 (1944) (decided under former Code 1933, § 85-1602).

Applicable only to rural divisions. —

It is a misapplication of statutory law to use the law for ascertaining boundaries between town lots and an adjacent tract, these laws being intended for operation upon the boundaries dividing rural lands only. Christian v. Weaver, 79 Ga. 406, 7 S. E. 261, 1887 Ga. LEXIS 238 (1887) (decided under former Code 1882, §§ 2384 – 2393).

Processioners’ duty is to mark existing lines, not establish new ones. —

Processioners are not to run and mark lines which at some previous time were located and established. Processioners may seek and find lines already existing, but cannot bring into existence any which have not been before designated on the surface of the earth. Lines merely drawn on paper, or in the minds of contracting parties are not ready for the search or services of processioners. Standard Oil Co. v. Altman, 173 Ga. 777, 161 S. E. 353, 1931 Ga. LEXIS 400 (1931) (decided under former Civil Code 1910, §§ 3817 – 3826).

It is the duty of the processioners together with the surveyor to run and mark anew the original line between the lots as set out in the application, subject to all the rules and regulations set forth in statute, as construed by the courts. Welch v. Haley, 83 Ga. App. 492, 64 S. E.2d 364, 1951 Ga. App. LEXIS 891 (1951) (decided under former Code 1933, §§ 85-1601 – 85-1610).

Surveyor and processioners have no authority to make and establish new lines, but their duty is to trace and mark anew old lines or those that can be taken as having been formerly located and established. Welch v. Haley, 83 Ga. App. 492, 64 S. E.2d 364, 1951 Ga. App. LEXIS 891 (1951) (decided under former Code 1933, §§ 85-1601 – 85-1610).

It is the province and duty of the processioners and surveyor in a processioning proceeding to run and mark anew a line or lines as the lines actually exist. Processioners have no authority under the law to mark new lines. Greenway v. Altman, 89 Ga. App. 557, 80 S. E.2d 89, 1954 Ga. App. LEXIS 513 (1954) (decided under former Code 1933, §§ 85-1601 – 85-1610).

Processioners can function even when established boundaries not marked in entirety. —

While it is the duty of processioners to mark anew established lines, and not to locate the line as the line originally ought to have been laid out, with the result that the processioners cannot mark anew lines which have never in a legal sense been established, this does not mean that when established enclosing boundaries are not physically marked in their entirety, processioners cannot function. Byrd v. McLucas, 194 Ga. 40, 20 S. E.2d 597, 1942 Ga. LEXIS 518 (1942) (decided under former Code 1933, §§ 85-1601 – 85-1610).

Processioning determines boundaries, not title. —

Since the object of the summary processioning laws is to settle disputes of boundary lines between coterminous landowners, and the proceeding is not designed as a substitute for an action in ejectment to settle title, which is not directly involved, it will be presumed that the processioners would not undertake to exercise jurisdiction to pass upon or determine any question involving a disputed title, but will confine themselves solely to the fixing of boundaries between the adjacent claimants, leaving undetermined any question relating to conflicting claims as to the title itself. Osborne v. Thompson, 154 Ga. App. 215, 267 S. E.2d 852, 1980 Ga. App. LEXIS 2095 (1980) (decided under former Code 1933, §§ 85-1601 – 85-1610).

Processioners must rely on corners, landmarks, and lines of demarcation where they exist. —

Even though the course and extent of the lines themselves may not have been physically marked out in their entirety upon the earth’s surface, if there should exist a sufficient number of physically established corners or landmarks, the mere connecting of which by straight lines would suffice to complete the boundaries, or if there be an established line of demarcation, such as an abandoned roadbed of a railroad, and if parallel boundaries of the railroad right of way can be actually determined by courses and distances with respect thereto, it would be the duty of processioners, to so ascertain and establish the courses and distances, but respecting always any rights had under actual possession, as defined by former Code 1933, § 85-1603 (see now O. C. G. A. § 44-4-7). Byrd v. McLucas, 194 Ga. 40, 20 S. E.2d 597, 1942 Ga. LEXIS 518 (1942) (decided under former Code 1933, §§ 85-1601 — 85-1610).

Land need not be completely measured nor marked in particular way. —

Nothing in the statute makes any requirement respecting the placing of line or corner markers or requires that such markers be placed on any particular interval or spacing and nothing in the law as the law presently exists requires that every foot or inch of a line be drawn on the face or surface of the earth, or that the processioners or a majority of the processioners actually walk over or along the entire line without omitting any interval in so doing. Hackle v. Bowen, 89 Ga. App. 799, 81 S. E.2d 294, 1954 Ga. App. LEXIS 584 (1954); Chapman v. Joyce, 155 Ga. App. 129, 270 S. E.2d 336, 1980 Ga. App. LEXIS 2488 (1980) (decided under former Code 1933, §§ 85-1601 – 85-1610).

Lines need only be located with some definiteness. —

All that is required of the processioners and the surveyor is that the lines be traced and marked anew so as to locate the lines with some definiteness. Chapman v. Joyce, 155 Ga. App. 129, 270 S. E.2d 336, 1980 Ga. App. LEXIS 2488 (1980) (decided under former Code 1933, §§ 85-1601 – 85-1610).

Use of illegal or erroneous method to locate line. —

Fact that processioners may have used an erroneous or illegal or improper method in ascertaining the location of the line would not subject their return to dismissal, but would merely authorize a jury finding against the line as run. Chapman v. Joyce, 155 Ga. App. 129, 270 S. E.2d 336, 1980 Ga. App. LEXIS 2488 (1980) (decided under former Code 1933, §§ 85-1601 – 85-1610).

Processioners’ plat and return prima facie evidence of boundary. —

Landowner made a prima facie case as to the location of a boundary by introducing the plat and return of the processioners. Nichols v. Purvis, 178 Ga. App. 826, 344 S. E.2d 692, 1986 Ga. App. LEXIS 1799 (1986) (decided under former O. C. G. A. § 44-4-1 et seq.).

When dispute is between two adjoining landowners, a survey of other boundaries is unnecessary. Nichols v. Purvis, 178 Ga. App. 826, 344 S. E.2d 692, 1986 Ga. App. LEXIS 1799 (1986) (decided under former O. C. G. A. § 44-4-1 et seq.).

Protest to proceedings. —

Former Code 1933, § 60-217 (see now O. C. G. A. § 44-2-77) stated that the judge, or the examiner with the approval of the judge, may require the land to be surveyed by some competent surveyor after due notice to the adjoining landowners, who, if dissatisfied with the survey, may file a protest with the court, whereupon the issues thus made would be tried as in case of a protest to the return of land processioners as authorized by statute. Harris v. Ernest L. Miller Co., 213 Ga. 748, 101 S. E.2d 715, 1958 Ga. LEXIS 268 (1958) (decided under former Code 1933, § 60-271).

Testimony by petitioner’s own surveyor. —

When no survey such as provided for in former Code 1933, § 60-217 (see now O. C. G. A. § 44-2-77) was ordered, but the petitioner introduced in evidence the testimony and survey of the petitioner’s own surveyor, who testified as to the location of the land lines, corners, and landmarks of the property, the evidence offered was competent and not subject to the objection that the petitioner’s survey did not comply with that statute or other statutory provisions. Harris v. Ernest L. Miller Co., 213 Ga. 748, 101 S. E.2d 715, 1958 Ga. LEXIS 268 (1958) (decided under former Code 1933, § 60-217).

Line found by processioners not authorized by evidence. —

When the evidence on the trial of a processioning proceeding is not sufficient to authorize the establishment of the line between conterminous owners of adjacent land lots as located by the processioners, it is nevertheless error to dismiss the entire proceeding on the ground that it is the province of the processioners to survey and mark anew established lines as those lines actually exist and that the processioners are without authority to run a new line, since the evidence as a whole authorizes the jury to establish such dividing line other than as located by the processioners. Rodgers v. Beavers, 76 Ga. App. 16, 45 S. E.2d 74, 1947 Ga. App. LEXIS 367 (1947) (decided under former Code 1933, §§ 85-1601 – 85-1610).

Jurisdiction. —

Court of Appeals, rather than the Supreme Court, had jurisdiction over a processioning action because processioning actions are statutory in nature and not intended to establish title. Elder v. Merritt, 204 Ga. App. 163, 418 S. E.2d 774, 1992 Ga. App. LEXIS 793 (1992) (decided under former O. C. G. A. §44-4-1 et seq.).

Writ of error lies to Court of Appeals, not to the Supreme Court to correct the judgment of the superior court in a proceeding instituted under former Civil Code 1910, § 3817 et seq. Elkins v. Merritt, 146 Ga. 647, 92 S. E. 51, 1917 Ga. LEXIS 421, transferred, 20 Ga. App. 737, 93 S. E. 236, 1917 Ga. App. LEXIS 1060 (1917); Guarantee Trust & Banking Co. v. Dickson, 148 Ga. 311, 96 S. E. 561, 1918 Ga. LEXIS 325 (1918), transferred, 23 Ga. App. 720, 99 S. E. 313, 1919 Ga. App. LEXIS 311 (1919)(decided under former Civil Code 1910, §§ 3817 – 3826).

Opinion Notes

OPINIONS OF THE ATTORNEY GENERAL Editor’s notes. —

In light of the similarity of the statutory provisions, opinions issued under former Code 1933, §§ 85-1601 – 85-1610 are included in the annotations for this chapter.

Article fails to mention costs. —

Former statutes enumerated the various duties of the ordinary (now probate judge) and required that the ordinary (now probate judge) record the actions of the processioners. However, the statutes failed to set the costs of the ordinary (now probate judge) for performing such acts. 1950-51 Ga. Op. Att'y Gen. 269 (decided under former Code 1933, §§ 85-1601 – 85-1610).

Research References & Practice Aids

Cross references.

Recordation of plats, § 15-6-67.

County surveyor, § 36-7-1 et seq.

Professional engineers and land surveyors, § 43-15-1 et seq.

RESEARCH REFERENCES Am. Jur. Proof of Facts.

Surveyor’s Failure to Exercise Due Care in Making Survey, 11 POF2d 397.

Change in Shoreline by Accretion or Avulsion, 21 POF2d 147.

Malicious Design and Construction of Fence, 22 POF2d 683.

Agreement of Adjoining Landowners Fixing Common Boundary, 34 POF2d 317.

Permissive Possession or Use of Land as Defeating Claim of Adverse Possession or Prescriptive Easement, 68 POF3d 239.

Proof of Adjoining Landowner’s Malicious or Unreasonable Construction of Fence, 73 POF3d 1.

Proof of Accretion or Avulsion in Title and Boundary Disputes over Additions to Riparian Land, 73 POF3d 167.

Proof of Boundary Established by Parol Agreement or Acquiescence of Adjoining Landowners, 82 POF3d 227.

Hierarchy Notes:

O. C. G. A. Title 44