Fortson v. Caudell

The evidence shows without dispute that in ascertaining the line in this case the processioners laid out a line described in a deed and plat attached. They did not lay out a line from physical marks on the face of the earth and mark anew an old line once physically established. The surveyor testified; "I ran the line according to this plat which has been introduced in evidence made by Mr. Stone in 1919 and the deed accompanying the plat; I followed the deed that was submitted to me that day." Both parties agreed on one corner which had been marked and in the past the line described in the deed and plat above referred to had been laid off and marked at one end by a stake and at one end by a tree, and the line run by the processioners ran close to a ditch and a hedgerow which ran for a short distance and which it was conceded was the true line for that distance. At the time of the processioning the stake formerly put down was gone and was not found and no one testified as to where it had been except from the survey. The law is, as I understand it, that processioners *Page 284 can not lay out a line as they think it ought to be from a deed or plat, but that it must be an old line, physically established by more than one mark. A line can not be established by one physical mark. What seems to me to confuse the majority is that a stake was once at the other end of the line from the tree, the agreed starting point. I agree that if the location of the old stake had been shown by evidence outside of the deed and plat the line run would have been authorized, but with the stake gone, the processioners did the same thing they would have done if the line had never been surveyed before and no plat made. In either event they would have been putting the line where they thought it should be. It was stated by Judge Jenkins in Cosby v. Reid,21 Ga. App. 604-5 (94 S.E. 824) that "muniments of title accompanied by diagrams or plats which might on paper sufficiently describe and designate the lines and boundaries of realty so as to render their ascertainment certain will not of themselves afford the proper basis for the services of processioners." He goes on further to say that if there are a sufficient number of landmarks established physically the line could be ascertained by connecting them or projecting them by the courses and distances on the plat. Nothing like that was done in this case. The ditch and hedgerow was not established as a part of the line because of a finding that it was physically marked as a part of the line, and the rest of the line was not projected from it. The evidence is that the line was run from the plat and it was a coincidence that a part of such a line ran close to the ditch and hedgerow. The protestant swore that the line was close to the hedgerow at the beginning but got farther and farther away so that at the end of the line it was many feet off of the line of the ditch and hedgerow. The case of Booker v.Booker, 41 Ga. App. 380 (153 S.E. 94), may be distinguishable on the record of the evidence which is not set out in detail. In support of the foregoing views see the cases cited in Smith v. Clemons, 71 Ga. App. 589 (31 S.E.2d 621). In view of the fact that the processioners found a line in a manner not authorized the court should have dismissed the proceeding. *Page 285