When a vendor in the conveyance of a portion of his land describes the boundary of the land conveyed as a certain stream, but contemporaneously agrees with the vendee that the boundary line instead of following the stream shall run according to a straight line then and there blazed, and later conveys to another vendee the rest of the tract with the same stream as a boundary, and the first vendee does not take physical possession of the area between the stream and the blazed line, the subsequent vendee without notice acquires the superior title to the area between the stream and the blazed area.
No. 13421. DECEMBER 3, 1940. REHEARING DENIED DECEMBER 18, 1940. This suit by Mrs. E. E. McNeal against Mrs. D. M. Carter et al. is for trespass and injunction as to the cutting of standing timber, and thereby incidentally involves the title (Bunger v. Grimm, 142 Ga. 448 (8), 83 S.E. 200 Ann. Cas. 1916C, 173) to a small piece of land near the forks of Satilla Creek and Fish Pond Branch in land lot 126 of the second district of Appling County. The verdict and judgment were in favor of the defendant. A motion for new trial was overruled, and the plaintiff excepted. Both parties claim under a common source of title, Nancy J. Altman, who originally owned the tract, now held in part by the plaintiff and in part by the defendant; and the contest is over the location of the dividing line between them. The first conveyance out of the common source is to T. B. Crapps, under whom defendant holds. It is by a deed dated January 29, 1903, conveying "75 acres, more or less, of lot of land No. 126, bounded on the east by original land lines, on north by lands of J. M. Brown, on west and south by a certain branch and Satilla Creek, the said lands being in the 2d land district of said county." The other deed from the common source is dated January 31, 1916, and is to all that parcel of land in 2d District of Appling County, "being the tract of 130 acres of lot of land No. 126, bounded on the north by original land line, on west and south by Satilla Creek, on east by a certain branch known as Fish Pond Branch." This passed by mesne conveyance into the plaintiff.
It appears that the timber which was cut would be on plaintiff's land but for an agreement, set up by the defendant, that at the time Mrs. Altman conveyed to Mr. Crapps in 1903 the vendor and the vendee entered into an agreement by which, instead of the branch being the boundary throughout, a straight line should be blazed for a short distance which should be treated as the line there; the reason for this being that the branch at this point ran into what is called a baygall (i.e., low-lying land matted with vegetable fibers and often with gallberry and other thick-growing bushes), making the identification of the run of the stream difficult of exact ascertainment. Trees were blazed along this line for the distance of it, about 200 yards.
The defendant relies on the rule on this subject as stated in *Page 443 Bradley v. Shelton, 189 Ga. 696 (4) (7 S.E. 261): "An unascertained or disputed boundary line between coterminous proprietors may be established either (1) by oral agreement, if the agreement be accompanied by actual possession to the agreed line or is otherwise executed; or (2) by acquiescence for seven years, by acts or declarations of owners of adjoining land, as provided by the Code, § 85-1602." Williamson v. Prather,188 Ga. 545 (4 S.E.2d 140); Ingram LeGrand Lumber Co. v.McAllister, 188 Ga. 626, 630 (4 S.E.2d 558). There is, however, a difference between settling a land-line dispute and an agreement, made at the time of a sale of land and the execution of the conveyance thereunder, that the boundaries stated in the conveyance should not control. For example, in Miller v.McGlaun, 63 Ga. 435, there was an agreement that instead of the boundary between the two tracts following the land-lot line, as stated in the deed, a creek which approximated the land-lot line in direction should be the boundary. It was held: "A verbal agreement that a creek should be the line between two adjoining proprietors of land, made, not with a view to settle any dispute in respect to what is the true original line between the two lots, but to set up a totally different and independent line, with no occupancy of the part in dispute, either by enclosure or clearing, can not be set up so as to affect a subsequent purchaser without notice of such agreement, who takes a deed with no description but the original lines." See Taylor v. Board ofTrustees, 185 Ga. 61 (194 S.E. 169).
It is not contended in this case that the blazed line was agreed on between two coterminous owners as a compromise of any doubt as to where the line named in the deed was, because at that time the vendor owned the entire tract and could convey according to whatever boundaries might be agreed on. They merely blazed this line and agreed on it, in order to keep from having to go into the baygall to identify the run of the branch. Instead of making the deed correspond to this deviation, they stated the branch as the boundary. At most the vendee obtained only equitable title to the land beyond the boundary stated in the deed; and in the absence of such physical possession as of itself to constitute notice of the equity, a subsequent purchaser from the same grantor, without notice, would acquire the superior title. The blazing of a few trees in a marsh or swamp and the occasional or sporadic cutting *Page 444 of timber over the boundary line would not constitute such possession as to execute the agreement or to give notice of it. Powell on Actions for Land, § 330; Dillon v. Mattox, 21 Ga. 113 (2); Royall v. Lisle, 15 Ga. 545 (3) (60 Am. D. 712);Hilton v. Singletary, 107 Ga. 821, 827 (33 S.E. 715). Under this view the judge erred in overruling the plaintiff's motion for new trial.
Judgment reversed. All the Justices concur, except Atkinson,P. J., who dissents.
ON MOTION FOR REHEARING.