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MILLIGAN v. HALE.
MOON v. HALE.
34562.
34563.
Processioning. Before Judge West. Walton Superior Court. January 9, 1953.
TOWNSEND, J.
The defendant in error, E. L. Hale, filed an application to have the boundary line between certain lands belonging to him and to the plaintiffs in error in these cases determined by processioners in accordance with the provisions of Code Chapter 85-16. The processioners found in favor of the line contended for by Hale and, on appeal, the jury also found in favor of this line as marked by the processioners. Upon the trial of the case, the applicant and three processioners all testified in substance: that they had begun at the northwest boundary of the tract at an iron pin as shown by a plat prepared for Milligan and Hale some years previously; that they proceeded along the edge of a wood, which served as a natural landmark, as shown by such plat to a corner, moving in an easterly direction; that thereupon Mrs. Moon protested that the line was about 40 feet east of the point she contended to be the boundary; that she did not, however, at that time contend that the iron pin which served as a starting point was inaccurate; that from this point the processioners proceeded in a southerly direction to a public road; that this line was about half a chain shorter than the plat showed, which fact did not affect the lands of Moon or Milligan, but did reduce the acreage of Hale; that they proceeded east along the public road as called for by the plat to another point, and that neither Milligan nor Mrs. Moon, who were present, protested at that time that such point was not accurate; that they then moved in a southerly direction along the courses shown by the plat, which line followed an old fence, hedgerow, stream, and other natural landmarks. They marked this line without determining its southerly point (which would be the southeast boundary of the Hale tract), and then began to run a line from an established iron pin forming the southwestern boundary of the Hale tract, running such line in an easterly direction until it intersected the north-south line, and there placed an iron pin. The line south from the public road also proved to be approximately one-half chain less than that called for by the plat, which fact also did not in any way affect the amount of land belonging to Mrs. Moon or Mr. Milligan. The processioners did not swear any witnesses, but took into account all the contentions of the adjoining landowners, who were present throughout the survey. If the north-south line had been run approximately 40 feet west of the line actually run, which was the line contended for by the plaintiffs in error, it would not have passed over any natural landmarks such as the fence and hedgerow, but would have cut across a field which Hale testified he had owned and cultivated for more than seven years. The processioners further testified as follows: "If the line was run along the line contended by Mrs. Moon, there would be no natural landmarks, and the line would run across cultivated fields. Mrs. Moon and Mr. Milligan were present and their contentions were heard by the processioners. We did not swear any witnesses and we did not go into the question of possession of seven years. We just did what we thought was right between the parties." "There were numerous natural landmarks down the line, fixed by the processioners as the true line between the parties. We were shown the corner contended by Mrs. Moon and if the line had been run from this corner along the same bearings shown in the plat, it would have been across cultivated lands with no signs of an established line. We considered ourselves to be running the old line between the parties and not making any new line. There were no changes from the old plat to the new, with the exception of shortening of two lines, and this would have had the effect of decreasing the acreage of Mr. Hale and would not take any land away from either Mr. Milligan or Mrs. Moon." "The corner as contended by Mrs. Moon was so located that, if a line had been run on the bearing shown on the original plat, there would have been no natural landmarks, but the line which was rerun by the processioners was along the hedgerow, an old fence line, and a branch line."
From the verdict in favor of the line as run by the processioners, the protestants filed a motion for new trial on the general grounds only, and the denial of this motion is assigned as error.
"To ascertain and fix new lines is not within the power or functions of processioners. Their vocation is to run and mark lines which at some previous time were located and established. They seek and find lines already existing, but can not 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." Amos v. Parker, 88 Ga. 754 (16 S. E. 200); Smith v. Clemons, 71 Ga. App. 589 (31 S. E. 2d, 621), and citations. "Under the law of processioning as it exists in this State, established lines, and not new ones, are to be fixed and determined; the location of lines, not as they ought to be, but as they actually exist, is to be sought; and where one has been in actual possession of land for more than seven years, under a claim of right, such claim shall be respected by the processioners, even though the land so possessed should be found to be within the original line of the opposing party." Bowen v. Jackson, 101 Ga. 817 (29 S. E. 40).
The testimony of the applicant Hale and of the protestant Mrs. Moon was in conflict to the extent that both parties claimed to have held actual possession of the disputed land up to the boundary line as claimed by each of them respectively. However, the undisputed evidence in the case is that the line as run by the processioners followed natural landmarks; and that the line as contended for by the protestant not only would not have retraced old landmarks but would have run through cultivated fields, which demonstrated possession in another, which possession, as shown by the testimony on the trial of this case, had been for a period of more than seven years. There is further no evidence to support the protestant's contention that the northwest and southwest corners of the Hale property had, at some time after she sold Hale the land, been moved forty feet to the west; but, on the contrary, all the testimony except her own is to the effect that these corners had for years been the recognized and undisputed corners of the property. The defects inherent in the case of Smith v. Brinson, 43 Ga. App. 248 (158 S. E. 454), where the processioners, in seeking the "true original line" ignored the claims of both sides and also ignored evidences of possession as shown by fences, cultivated fields, and so on, are not present here; but, on the contrary, the processioners advised themselves as to the contentions of both parties and then, in retracing the line, took into account both natural landmarks and evidence of possession as shown by cultivated fields. It follows, therefore, that the verdict in favor of the line as found by the processioners was supported by the evidence, and the trial court did not err in denying the motion for new trial.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
D. M. Pollock, contra.
Roberts & Roberts, for plaintiff in error.
DECIDED APRIL 22, 1953.
Saturday May 23 04:19 EDT


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