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Injunction. Stewart Superior Court. Before Judge Rees. January 24, 1958.
HEAD, Justice.
The evidence was insufficient to sustain the allegations of the plaintiff's petition, and therefore he was not entitled to the relief sought.
In an action to enjoin alleged continuing trespasses, the plaintiff's petition set out that he is the owner and in possession of certain lands "facing on Main Street 20 feet more or less, and extending back south the same width to the right-of-way of the Seaboard Air Line Railroad." By amendment it was alleged that his deed was duly recorded, and that it described the property as "facing on Main Street 20 feet, more or less, and extending back south the same width to the right-of-way of the Seaboard Air Line Railroad." By a second amendment adding paragraph (d) to his prayers, he prayed: "That the line between the lands of your petitioner and the defendant be decreed to be a line described as follows: Beginning at the north-east corner of the land of your petitioner at which point is located the north end of an old paling fence; thence from said point of beginning south 1 degree 2 minutes west along said paling fence a distance of 110 feet; thence due east along the said paling fence a distance of 5 feet; thence south 1 degree 31 minutes east a distance of 131 feet 7 inches to a point on the north right-of-way line of the Seaboard Airline Railway."
On the trial, at the conclusion of the evidence, the plaintiff's motion for a directed verdict was denied by the trial judge. The jury returned a verdict for the defendant, on which judgment was entered. The plaintiff's motion for a new trial as amended, and his motion for judgment notwithstanding the verdict, were both denied, and error is assigned on each of these judgments.
"It is error to direct a verdict, except where there is no conflict in the evidence introduced as to the material facts, and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. Code 110-104; Shaw v. Probasco, 139 Ga. 481 (77 S. E. 577); Hughes v. Cobb, 195 Ga. 213, 230 (23 S. E. 2d 701); Yablon v. Metropolitan Life Ins. Co., 200 Ga. 693, 703 (38 S. E. 2d 534). And a verdict should not be directed unless there is no issue of fact, or unless the proved facts, viewed from every possible legal point of view, can sustain no other finding than that directed. Davis [v.] Kirkland, 1 Ga. App. 5 (58 S. E. 209); Ayer v. First National Bank & Trust Co., 182 Ga. 765 (187 S. E. 27); Renitz v. Williamson, 149 Ga. 241 (4) (99 S. E. 869); Atwood v. Edenfield, 150 Ga. 198 (103 S. E. 170); Word v. Bowen, 181 Ga. 736 (3) (184 S. E. 303); Everett v. Miller, 183 Ga. 343 (188 S. E. 342); Patterson v. Fountain, 183 Ga. 676 (189 S. E. 4); Hughes v. Cobb, supra." Norris v. Coffee, 206 Ga. 759 (4) (58 S. E. 2d 812). See also Shockey v. Baker, 212 Ga. 106, 108 (90 S. E. 2d 654).
"To maintain an action for trespass or injury to realty, it is essential that the plaintiff show either that he was the true owner or was in possession at the time of the trespass." James v. Riley, 181 Ga. 454 (2) (182 S. E. 604); Bruce v. Strickland, 201 Ga. 526 (40 S. E. 2d 386); Shirling v. Hester, 201 Ga. 706 (40 S. E. 2d 743); Tolnas v. Pope, 212 Ga. 50 (90 S. E. 2d 420).
In the present case, the testimony offered on behalf of the defendant supports the verdict rendered. In order to return a verdict for the plaintiff, the jury would have been required to find that he was the true owner, or that he was in possession, of the five-foot strip represented by the offset in the line he sought to have established by the decree of the court. The plaintiff's chain of title described his land as "facing on Main Street 20 feet, more or less, and extending back south the same width to the right-of-way of the Seaboard Air Line Railroad." He testified that, "there is a paling or picket fence from the street back 110 feet; there is no controversy as to that line of 110 feet between me and the Barbaree property; so far as I know it has been the accepted line and is the accepted line; no one that I know of ever claimed that that was not the line; there is an offset at the end of the 110 feet; the offset goes east; the offset is supposed to be five feet wide." Under the plaintiff's deeds, the lines of his property are straight, extending back "the same width," and his paper title completely fails to show any title in him to the five-foot "offset" in his property lines as claimed by him.
With reference to possession of the five-foot strip, the plaintiff testified on cross-examination: "when I bought the property from Zim Coffin, Barbaree had a house on that land that is in argument today; Barbaree had a fence upon this land running from the southwest corner to the right of way of the railroad; Barbaree was in possession of it at that time; I have never moved there but he was in possession of it when I went in possession of the land [residence property adjoining] and I guess he has been in possession of it until this day; I never could get it moved off." The description in the plaintiff's deed, and his testimony as to the possession by the defendant of the five-foot strip, demanded the verdict returned by the jury for the defendant.
The three amended grounds of the motion for new trial, pertaining to the exclusion of certain documentary evidence and to the admission of certain testimony, fail to show any reversible error. If the court had ruled in accordance with the plaintiff's contentions, the verdict for the defendant would none the less have been demanded under the plaintiff's deeds and his testimony as to possession by the defendant.
Judgment affirmed. All the Justices concur.
Carlton S. Brown, contra.
W. W. McKinnon, J. Frank Myers, for plaintiff in error.
SUBMITTED APRIL 14, 1958 -- DECIDED MAY 7, 1958.
Saturday May 23 01:10 EDT

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