Friendship Baptist Church, Inc. v. West

Carley, Justice.

In 1993, Friendship Baptist Church brought this action for declaratory judgment against West, seeking a declaration that the Church had acquired prescriptive title to a parcel of unenclosed land adjacent to the Church measuring 15 feet by 75 feet. The trial court denied a motion for directed verdict made by the Church, and the jury returned a verdict finding that title was vested in West. The Church appeals from the judgment entered by the trial court on the jury’s verdict and enumerates as error the denial of its motion for directed verdict.

Where, as here, there is no color of title and prescriptive title is claimed by virtue of possession for 20 years, the prescription will not extend beyond the actual “possessio pedis,” which means the area of actual possession as defined in OCGA § 44-5-165. Arnold v. Shackel-ford, 219 Ga. 839, 843 (2) (136 SE2d 384) (1964); Kerlin v. Southern Bell Tel. &c. Co., 191 Ga. 663, 667 (2) (13 SE2d 790) (1941). Under OCGA § 44-5-165, actual possession may be evidenced by enclosure, cultivation, or any use and occupation which is so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another. The Church neither enclosed nor cultivated the lot in question. Where there is no evidence of enclosure or cultivation, notoriety and exclusivity become questions of fact for the jury. Chamblee v. Johnson, 200 Ga. 838, 842 (1) (38 SE2d 721) (1946). See also Flannery & Co. v. Hightower, 97 Ga. 592 (3) (25 SE 371) (1895).

In 1970, the Church began receiving rental payments from a sign company which maintained billboards on the lot. However, the billboards would give notice of nothing more than an easement, as is the case with telephone and power lines and poles. See Chancey v. Ga. *746Power Co., 238 Ga. 397 (1) (233 SE2d 365) (1977); Kerlin v. Southern Bell Tel. &c. Co., supra at 666 (1). The posts and signs in this case should be considered as marking or outlining a general area which is being used according to the usual and ordinary manner, and if the outer limits of this use remained the same for the prescriptive period, the easement would apply to such general area. Kerlin v. Southern Bell Tel. &c. Co., supra at 667 (2). See also Humphries v. Ga. Power Co., 224 Ga. 128, 129 (3) (160 SE2d 351) (1968). However, the billboards would not, as a matter of law, evidence actual possession by the Church which is so exclusive as to prevent occupation by others of the entire lot or even of the area directly beneath the signs. See Chancey, supra at 398.

The Church did mow and occasionally clean up the area, but that is not generally sufficient to constitute actual possession, much less to require such conclusion as a matter of law. 2 CJS 701, Adverse Possession, § 40. Because the lot in question adjoins the Church’s property, other claimants could have interpreted such mowing and occasional cleanup as having a merely aesthetic objective and not as an intent to exercise dominion.

Neither the Church’s billboards nor its mowing is as notorious or exclusive as the Church’s enclosure or cultivation would be. Therefore, the issue of actual possession “becomes a question of fact for the jury. [Cit.]” Chamblee v. Johnson, supra at 842 (1). Where there is some evidence on either side of this issue, a reviewing court should not disturb the verdict. Thompson v. Fouts, 203 Ga. 522 (3) (47 SE2d 571) (1948).

It follows that the trial court did not err in denying the Church’s motion for directed verdict.

Judgment affirmed.

All the Justices concur, except Benham, C. J., Sears and Thompson, JJ., who dissent.