1. Since the evidence did not show a binding agreement among two of the three adjoining landowners to establish a new boundary line or any acquiescence in it, the verdict of the jury fixing the new boundary as allegedly established by agreement of all adjoining owners was without evidence to support it.
2. In the absence of a request the trial judge does not have a duty to charge the jury upon the burden of proof or the shifting of the burden or the making of a prima facie case.
3. A reference in the charge to a land line as disputed or indefinite or unascertained does not amount to an expression of opinion by the court that it is indefinite or unascertained.
Plaintiff in error, hereinafter called plaintiff, made application to processioners to trace and mark the line between his lands as described in the application and the lands of the defendant in error, hereinafter called defendant. After due notice to the defendant, the processioners, together with the county surveyor, marked a dividing line between the tracts of land, and filed the application for processioning, the notice to the defendant, the entry of service, and the return of the processioners, together with plat of the line run and marked by them, in the office of the Ordinary of Tattnall County. Within the time allowed by law, defendant filed with the ordinary her protest to the return of the processioners, in which she prayed that the papers in the cause be filed with the superior court, which was done. The matter was then tried before a jury in the superior court. The plaintiff introduced into evidence, without objection, the processioning proceedings, including the return of the processioners, together with the certificate of the county surveyor and plat prepared by the county surveyor, and then rested. The evidence on behalf of the defendant showed that the defendant in error and W. A. Thompson, a former owner of a 1/3 undivided interest in and to the lands coterminous with the lands of the defendant in error, and those of the plaintiff in error, entered into an agreement in 1951 as to a dividing line. Defendant's evidence showed that R. H. Jones acquired title to a tract of land containing 156 acres in 1905, this tract being bounded on the south by lands of C. C. Padgett, and the southern 40 acres of this tract included some swamp land known locally as "Big Bay." In 1923, Jones deeded 40 acres of the land on the western end to his daughter, Mrs. Mamie Tootle, and attached to the deed a plat. Both the plat and the deed gave the southern boundary as "Big Bay." Mrs. Tootle sold the land in 1937 by the same description to T. W. Roberson, who in 1938 sold it by the same description to George D. Morris, who in 1939 conveyed it to the defendant, giving the same southern boundary. The remainder of the Jones tract of land not bounded by "Big Bay" on the south has, for several years, belonged to the plaintiff, and there is no dispute between the parties as to the dividing line between them of the Jones land.
After acquiring her land, defendant moved upon it and has operated a farm, the northern part of which is in cultivation, the southern part being in "Big Bay" swamp. The land of Padgett on the south of the defendant's property was sold to one Beasley, who died in 1947. His executor sold it to W. A. Thompson, his wife and daughter. The plaintiff bought, on February 17, 1953, the portion of the Thompson land which adjoined the land of the defendant from the three Thompsons. In 1951 an agreement was entered into between Mr. Thompson and the defendant establishing the dividing line which was platted and placed on record. The line established by this agreement was the line which the defendant contended was the correct one in her protest to the return of the processioners and was the one which the jury established by its verdict in favor of the defendant. The plaintiff filed a motion for new trial which, as amended, assigned five special grounds, which are discussed in the opinion.
Upon hearing on the motion for new trial, the trial judge overruled it on all grounds, to which the plaintiff excepted.
1. Plaintiff contends that the evidence does not support the verdict. The evidence does show that the defendant's husband, who the jury could find was her authorized agent, entered into an agreement with W. A. Thompson, who was the owner of a 1/3 interest in the property subsequently acquired by the plaintiff from Thompson and his two co-owners. The agreement established the line which the defendant contended was the boundary between her property and that of the plaintiff. Thompson's testimony was that the line agreed upon cut off a "little piece of his land." There is no evidence in the record to show that this agreement establishing the new boundary line between the Thompson property and the defendant's property was authorized to be made by the other two Thompsons nor is there anything to show that they ratified or acquiesced in it. Furthermore, the plat which established this new line and apparently was recorded is captioned "Plat of land belonging to W. A. Thompson."
Since the evidence did not show a parol agreement between the adjoining landowners, the evidence did not support the verdict of the jury fixing the boundary line in accordance with the agreement. Cf. Swinson v. Jones, 66 Ga. App. 598 (18 SE2d 646); and Osteen v. Wynn, 131 Ga. 209 (62 SE 37).
The trial court erred in overruling the motion for new trial on the general grounds.
2. Special ground 3 of the amended motion for new trial contends that the court erred in charging the jury that the burden of proof rested upon the plaintiff to establish his contentions by a preponderance of the evidence without instructing the jury that the burden of proof was carried when the plaintiff introduced the processioning proceedings, and that when this was done the burden shifted to the defendant.
Since it is clear that the return of the processioners and the plat of the surveyor make out a prima facie case for the applicant in a processioning proceeding (Castleberry v. Parrish, 135 Ga. 527
(3a), 68 SE 817
), it would certainly have been correct for the court to have charged the jury that then the applicant in a processioning action makes out a prima facie case, the burden of proof then shifts to the protestant to show by a preponderance of the evidence that the return of the processioners is incorrect. Payne v. Green, 84 Ga. App. 689 (1) (67 SE2d 195)
. This raises the question as to whether there is any duty upon the trial judge to charge as to the shifting of the burden of the proof in the absence of a request. We do not think so. It is not error to fail to charge on the burden of proof or the shifting of the burden or the making of a prima facie case on a certain feature of the case unless there is a timely appropriate request for such charge to be made. Knapp Bros. Mfg. Co. v. Cook, 171 Ga. 330 (2) (155 SE 321)
. See also Davis v. Peek, 43 Ga. App. 199 (3) (158 SE 348)
; and Savannah Motor Car Co. v. Butler, 37 Ga. App. 321 (3) (140 SE 383)
. If a party desires an instruction on the shifting of the burden of proof, he should make a written request therefor. American Associated Companies v. Vaughan, 213 Ga. 119
, 123 (4) (97 SE2d 144
Special grounds 4 and 5 similarly contend that the charge of the court placed the burden of proof upon the plaintiff to prove the correctness of his contentions, and this placed the entire burden throughout the trial upon the plaintiff and did not point to the burden resting upon the defendant to prove the correctness of her contentions.
Special ground 6 urged that it was error for the court to fail to charge the jury that when the plaintiff introduces into evidence the return of the processioners that the return is deemed prima facie correct. While this would have been appropriate under Castleberry, supra, we think that this also relates to the burden of proof, and in the absence of a request, under the authorities cited, there was no duty upon the court so to charge.
The trial court properly overruled special grounds 3, 4, 5, and 6 of the amended motion for new trial.
3. Special ground 7 assigns error in the court giving the following charge to the jury: " . . . I charge you in this case that this is a de novo or a new investigation and you should determine the true and correct location of the disputed or indefinite or unascertained land line between these parties solely and only from the evidence introduced and admitted in this trial." Plaintiff contends that the court erred in referring to the land line as indefinite or unascertained since whether it was in fact unascertained or indefinite was a question for the jury and one of the issues in the case and that by the court referring to it as being indefinite, this amounted to an expression of opinion by the court that it was so.
The trial court properly overruled special ground 7 of the amended motion for a new trial,
Judgment affirmed in part; reversed in part. Hall, J., concurs. Felton, C. J., concurs in the judgment.