1. Since the plaintiffs are adjacent landowners to the defendant and their deeds define the boundary of their property as the property of the defendant or defendant's predecessor in title, the plaintiffs can not acquire prescriptive title as against defendant by virtue of possession under such deeds, except as to such land as they actually possess; and for the same reason the plaintiffs' duly recorded deed will not be construed to give constructive possession as against the defendant. Accordingly, the judge did not err in failing to give in charge the Code, §§ 85-405, 85-407.
2. Though a number of the plaintiffs' witnesses testified that the plaintiffs and their predecessors in title had been in "open, notorious, adverse, peaceable, and uninterrupted possession" of the land in dispute for over forty years, this was insufficient to prove prescriptive title by adverse possession for twenty years. It does not show the possession to have been exclusive. It furnishes no facts upon which the court could determine if the alleged possession was notorious in the degree and to the extent required by the Code, § 85-403. The court did not err in failing to charge on title by prescription under the Code, § 85-406.
3. Where the plaintiffs' case was based upon the allegation that the defendant had entered upon their land and was constructing a fence thereon at a distance of eighty-nine feet and two inches north of the true dividing line, and it was sought to enjoin such alleged trespass of the defendant, it was harmful error for the judge to tell the jury that the plaintiffs contended that the line is eighty-nine feet and two inches above the established line.
4. Where, upon reversal, the matters complained of in certain special grounds of a motion for new trial will not likely occur on another trial, and where the evidence on another trial may not be the same, the Supreme Court will render no decision on such grounds.
No. 14382. NOVEMBER 30, 1942. *Page 56 The plaintiffs alleged that they owned described land in Andersonville, Sumter County, Georgia; that they held deeds thereto; that they and their predecessors in title had been in "open, notorious, continuous, adverse, peaceable, and uninterrupted possession thereof" for over forty years, that the defendant owned adjacent land, and had trespassed upon lands of the plaintiffs by going thereon and beginning the construction of a fence at a distance of eighty-nine feet and two inches north of the dividing line. They prayed for permanent injunction against the defendant, who was alleged to be insolvent and unable to answer in damages for constructing the fence; and for general relief. The defendant's answer denied the material allegations of the petition.
Upon the trial the plaintiffs introduced in evidence deeds dated in 1937 and duly recorded, conveying to them the land described in the petition, and a deed dated in 1915 and duly recorded, conveying a portion of the described land to their grantors. Also the testimony of a number of witnesses to the effect that they were acquainted with the dividing line between the lands of petitioners and defendant; that the true line was as contended by petitioners, and had been so recognized by the predecessors in title of both petitioners and defendant over a long period of time; and that petitioners and their predecessors in title "have been in the open, continuous, adverse, peaceable, and uninterrupted possession" of the tract of land claimed by petitioners between the point where petitioners claim the true dividing line is and where defendant has started to build a fence. The plaintiffs offered no evidence of specific acts evidencing their alleged possession. The defendant introduced a deed dated in 1930, but not recorded until 1942, conveying to defendant one acre more or less of land. This deed gave as the north boundary of the land conveyed "Glover Street." All of the plaintiffs' deeds as well as deeds to their predecessors in title gave the south boundary as land owned by other persons. None of the deeds identified the dividing line by any mark or sign other than lands of others. The defendant introduced evidence to the effect that she had been in possession, resided upon, and cultivated certain crops on the tract of land claimed by her; that Glover *Page 57 Street had never been opened, but had been designated as the point which she now claims is the northern boundary of her land.
The jury returned a verdict in favor of the defendant. The plaintiffs' motion for new trial contained the grounds that the court erred in failing to charge the jury: (1) that possession under a duly recorded deed will be construed to extend to all the contiguous property embraced therein. (2) that actual adverse possession of lands for twenty years by itself gives good title by prescription against every one, as provided in the Code, § 85-406. (3) that adverse possession of land under written evidence of title for seven years gives a like title by prescription. Grounds 4, 5, and 6 except to certain statements made by the judge in response to questions asked by the jury when they returned into court, seeking further instructions, after having deliberated for some time. In ground 5 it is recited that the foreman of the jury asked the court, "Does the defendant claim all of the land on which the house rests?" As a part of the court's negative answer, and after stating the defendant's contention, the court said: "The plaintiff contends the line is some eighty-nine feet two inches maybe above the established line." To the overruling of their motion for new trial the plaintiffs excepted. Error is assigned also in exceptions pendente lite to the decree entered on the verdict, which decree fixed the dividing line. 1. "When land is bounded in a deed by the land of an adjacent owner, there can be no prescription under the deed, as against such owner, further than the actual possession of the grantee in the deed extends." Strong v. Powell,92 Ga. 591 (20 S.E. 6). To the same effect, see Quarterman v.Perry, 190 Ga. 275 (3) (9 S.E.2d 61); Anderson v.Black, 191 Ga. 627 (2) (13 S.E.2d 650); Robertson v.Abernathy, 192 Ga. 694 (16 S.E.2d 584). It is declared in the Code, § 85-404: "Adjacent owners may be in constructive possession of the same land, being included in the boundaries of each tract. In such cases, no prescription can arise in favor of either." Under these authorities, in view of the dividing line as described in the petitioners' deeds, neither the provisions of the Code, § 85-405, relating to possession under a recorded deed, nor of § 85-407, relating to prescriptive title by adverse possession under color for seven *Page 58 years, were applicable; and the court did not err in failing to give these sections in charge to the jury.
2. The allegations of possession and the testimony as to possession are precisely the same. Both recite in general terms the possession of petitioners and their predecessors in title for more than twenty years. Neither states that this possession was exclusive, and neither shows the degree of notoriety of the alleged possession. It is observed that the Code, § 85-406, provides that the possession that will ripen in twenty years into prescriptive title must be "actual" and must be "adverse." See also Tillman v. Bomar, 134 Ga. 660 (5) (68 S.E. 504);Baker v. White, 136 Ga. 541 (71 S.E. 871); Rock Run IronCo. v. Heath, 155 Ga. 95 (2) (116 S.E. 590). These two terms are clearly defined by law. Actual possession is evidenced by inclosure, cultivation, or any "use and occupation thereof which is so notorious as to attract the attention of every adverse claimant, and so exclusive as to prevent actual occupation by another." Code, § 85-403. There was no evidence here of inclosure or cultivation, or of any use or occupation. The petition alleged and the witnesses testified that the possession was notorious; but under the statute as above quoted, to stop with saying that it is notorious is insufficient. It must be so notorious as to attract the attention of every adverse claimant. For the court and jury to intelligently determine this degree of notoriety, it is imperative that they be given evidence upon which to base a decision. Based solely upon the evidence in this case, which stops with the general statement that the possession was notorious, it would not be possible for the court to make a finding that the plaintiffs' possession met the requirements of the statute in this respect. Nor did the allegations or proof show that it was exclusive as above required. The term "adverse" as used in the statute is defined in the Code, § 85-402. It is there required that the possession be in the right of the possessor; that it shall not originate in fraud; and that it be public, continuous, exclusive, uninterrupted, and peaceable, and accompanied by a claim of right. The evidence in the present case is silent on that quality of the alleged possession defined by the statute as "exclusive." We do not overlook the statement made by this court in Sweeney v. Sweeney, 121 Ga. 293 (48 S.E. 984), that, "When it is material to an issue on trial, a witness may testify who was in the actual *Page 59 possession of designated realty at a given time." That case as reported does not show what the evidence was. We have examined the original record of file in this court, and find that there was evidence that the alleged possessor looked after the property, repaired fences, and built houses and fences and other improvements thereon. The ruling by this court based upon that record means only that, where the evidences of possession are given, a witness may be permitted, based upon such evidence, to state who was in possession. In referring to that ruling, this court in Copeland v. Jordan, 144 Ga. 636 (2) (87 S.E. 1034), said that it "did not deal with constructive possession, but only with actual possession evidenced by visible facts; and that the admission of such evidence would be subject to cross-examination and motion to exclude the evidence, if it thus appeared to be improper." If such testimony can be shown to be improper by cross-examination and thus subject to be excluded, it would be because the cross-examination disclosed that it was a mere conclusion of the witness, unsupported by facts. If subject to be excluded upon this ground, then it is insufficient, standing alone, to support a finding of prescriptive title by actual adverse possession. In Steinheimer v. Bridges,146 Ga. 214 (2) (91 S.E. 19), it was said: "Under the facts of this case, it did not amount to an expression of opinion for a witness to testify that a named person was in actual possession of the land in dispute." Cited as support for the ruling wereSweeney v. Sweeney and Copeland v. Jordan, supra. In that case the land in question was a cultivated farm on which the alleged possessor and his family resided for a number of years. There was no dispute as to the fact of this possession, but the evidence was conflicting as to whether possession was surrendered in pursuance of a transfer. The ruling there made means only that because of the facts in the case the witness was authorized to testify as to who was in possession. It is not authority for the proposition that a witness may state who is in possession of land in a case where there are no facts evidencing possession, and where there is a dispute as to the fact of its possession. For the reasons above stated, we think neither of these decisions rules that testimony of a witness that one was in possession of land during the prescriptive period would support and authorize a finding of title by prescription. In Paxson v. Bailey,17 Ga. 600 (2), it was said: "Adverse possession *Page 60 is usually a mixed question of law and facts — whether the facts exist which constitute adverse possession, is for the jury to judge. Whether, assuming the facts proven to be true, they constitute adverse possession, is for the court to decide." This rule is stated in substantially the above language in 2 C. J. S. 855, § 228. Under this rule, how could the court decide whether the proved facts amount to adverse possession as defined by the statute, unless something more than a mere conclusion of a witness is shown? The witnesses in the present case testified that the possession of the plaintiffs was notorious. How notorious? Under the statute the court must decide this question, and to sustain a prescriptive title for the plaintiff the court must find that it is so notorious as to attract the attention of every adverse claimant. The bare opinion or conclusion of a witness that the possession was notorious would never authorize a court to find that it was notorious in the degree and to the extent required by law. The plaintiffs' evidence was not sufficient to authorize a finding of prescriptive title by twenty-years adverse possession. The court did not err, as contended in amended ground 2, in failing to charge on prescriptive title as provided in the Code, § 85-406.
3. The statement by the judge, excepted to in ground 5 was harmful error. The very essence of the plaintiffs' case as alleged in the petition was that the defendant, and not the plaintiffs, was seeking to avoid the true dividing line. It alleged that the defendant had trespassed upon the plaintiffs' land by going thereon and beginning to construct a fence at a distance of eighty-nine feet and two inches north of the true line. It is obvious therefore that the plaintiffs' case was seriously prejudiced when the judge told the jury that the plaintiffs contended that the line was eighty-nine feet and two inches above the true line. Doubtless this statement was inadvertent, and not intended to prejudice the plaintiffs' case; but this court can not be sure that the jury so understood. As it appears in this record, which is certified as true by the trial judge, the statement stood before the jury unexplained. This statement was harmful error.
4. The matters complained of in grounds 4 and 6 will not likely occur on another trial, and the evidence may not be the same on another trial. Hence no ruling is made on these grounds, and on the general grounds of the motion for a new trial.
Judgment reversed. All the Justices concur. *Page 61