Edmiston v. Whitney Land Company , 198 Ga. 546 ( 1944 )

1. Where the plaintiff sued to recover from the defendant for sand sold under a contract, and by interpleader third parties claimed the proceeds of such sale, contending that the sand had been removed from their property, and there being an issue as to whether the sand had been removed from this land or from a strip of land lying between their land and that of the plaintiff, the use of which had been granted by another to the plaintiff, and the controlling question being the location of the dividing line between such strip and the claimants' land, the court did not err for any reason assigned in charging the jury that the properties were coterminous.

2. The evidence was sufficient to support the verdict in favor of the claimants.

No. 14970. OCTOBER 7, 1944. REHEARING DENIED NOVEMBER 22, 1944. N. B. Edmiston filed a petition in Fulton superior court against Fulton County, seeking to recover a judgment of $461.20 for sand alleged to have been removed from his land under a lease contract. The county filed an answer which as amended admitted removing the sand, but averred that before making a settlement with the petitioner, it was notified that the property on which the sand bed was located belonged to Whitney Land Company and Mrs. Gertrude C. Whitney, of Richmond County, and prayed: (a) that the claimants interplead, and that the defendant be allowed to pay the fund into the registry of the court; (b) that Whitney Land Company and Mrs. Whitney be made parties and served with second originals; (c) that Whitney Land Company, Mrs. Whitney, and the petitioner be required to set up their claims to the fund, and that the defendant be relieved from any further liability; and (d) for process and general relief.

Mrs. Whitney and Whitney Land Company filed separate responses to the petition for interpleader, averring that the former owned a two-fifths and the latter a three-fifths undivided interest in the property on which the sand bed was located; also that the real issue between the respondents and Edmiston was as to the location of the dividing line between their property and that of Edmiston. Each response contained a prayer that the line be definitely located and that the fund be distributed accordingly.

Edmiston filed a response, averring that he was the owner of a described tract of land known as "Block 10" of "Peachtree Hills Place," and that his deed granted him "an exclusive right of user of the strip of land in the rear of said block and fronting on Peachtree Creek, together with all water and sand rights incident to said land, as against Whitney Land Company and Mrs. Gertrude C. Whitney, and all other persons whomsoever; and that, by reason of said title and `right of user' and said `water and sand rights,' he had a right to make the lease contract with Fulton County which is the basis of this suit; and [that] he is entitled to all the rents which have accrued thereunder." He also pleaded that he had entered into possession on October 27, 1921, and that prior thereto his predecessors in title had been in open, adverse possession of the premises for a period of more than twenty years, thus giving him "a prescriptive title to and a right of user in said lands." The prayers were: (a) that he be given a judgment against Fulton County for the fund in controversy; (b) that the title and right to the property involved be decreed to be in him; (c) that the prayers of the Whitneys for a decree establishing in them any rights or title in such lands be denied; (d) that the clerk be ordered to pay over the fund to him, and that the claims of the Whitneys be denied; and (e) that he be given such other relief as to the court might appear necessary. Mrs. Whitney died pending the action, and Hall D. Beman, her executor, was made a party.

On the trial two sets of deeds and several plats were introduced in evidence, constituting two chains of title, each going back to a common grantor. One ended in a deed to twenty-six acres in favor of the Whitneys, and the other ended in a definitely described tract of land in Edmiston. None of the plats purported to set forth the land claimed by the opposite party. J. W. Burpitt testified for the Whitneys that he made several surveys of their land, and was familiar with the location of the sand pump. That there is a line that runs 590 feet in a southeasterly direction from Peachtree Road between the Whitney property and the land of Edmiston to an old iron pipe, and then continues slightly east 325 feet to the bank of the old creek run. The condition of the soil is such as to cause the creek run to change its course regularly. The land south of the above line is the Whitney property. There is an old dead tree with timbers nailed on it that identifies the location of the sand pump. According to the plats prepared by the witness and also a plat made by his predecessor, the pump is on the Whitney property. E. A. Werner, a civil engineer, testified for the Whitneys that he knew where the iron stake was, and that the sand was taken off of the Whitney property; that there is a bridle path laid out as a street, but it does not encroach on the Whitney property. Edmiston did not testify or offer any witnesses, but rested after introducing in evidence his deeds and the plat he relied on. The deed to Edmiston contained a clause giving him the right to take sand as set forth in his answer. At the conclusion of the evidence, the jury returned a verdict finding "the issue in favor of the Whitney claim and that the fund in question belongs to said claimant." The exception is to a judgment overruling Edmiston's motion for a new trial, containing the general grounds and one special ground. (After stating the foregoing facts.) 1. The fourth or special ground of the motion for new trial complains of the charge: "It is undisputed, gentlemen, that these two properties are what we call coterminous — that is, one begins where the other ends or vice versa, and the dispute, as you can readily see, is as to which tract of land the pump was situated on. If you can determine that issue, you will have then reached the answer to this whole problem which is a claim to $461.20. . . Is there any question from either party or any other instructions to be given the jury? If so, I will be glad to give it, if you think there are any other instructions necessary." [Counsel for Edmiston]: "Inasmuch as the burden is on the Whitney interest to establish their claim, we think it would be proper to instruct the jury that, if they find the pump was not on the Whitney property, they would find against the claim." [The Court]: "I take it there is no dispute that these properties are coterminous, and if it is not on one, it is on the other. I take it this contest contemplates that the properties are coterminous, and it is just a question, as has been argued by you, of which side of the line the pump is on." Exception is taken to this instruction as being the expression of an opinion concerning what had been proved, notwithstanding the movant's contention that the parties were not coterminous owners, but on the contrary that the sand was removed from a strip of land owned by Peachtree Hills Realty Company lying between the movant's lot and the land of the Whitneys, and that Peachtree Hills Realty Company had granted a right of user to the movant. The movant insists further that the charge converted the controversy into an issue as to the location of a land line, and relieved the Whitneys from the burden of tracing their chain of title to a common grantor.

The above criticism is without merit. In giving the charge, the trial judge was stating the contentions of the parties as he understood them. The Whitneys, in their response to the order to interplead, had averred that the real issue was as to the location of the dividing line between their property and that of the movant. In another portion of the charge, the court told the jury that they would have the pleadings out with them and that they could refer to them and see with more particularity just what was claimed by each party. It is the duty of counsel to aid the court in determining what issues should be submitted to the jury. Anderson v. State, 196 Ga. 468, 471 (26 S.E.2d 755). In the instant case, the evidence of the Whitneys was in substance that a designated line separated their land from that of the movant and that the sand was removed from their property, while the deeds relied on by the movant showed the exclusive right in him to remove sand from a strip of land owned by a third person not a party to the case. There was no evidence that any land lay between the property of the movant and that of the Whitneys except as above indicated, and the movant was claiming the right of user to the strip, which right was not denied by the Whitneys. Under the evidence, the jury could have found but one of two things — either that the sand was taken from the Whitney land, or that it was taken from the strip the use of which had been granted to the movant. Even if the movant had a fee-simple title to the strip of land, and not merely a right of user to remove the sand, he could not assert a right to the proceeds of the sale if in fact the sand had been removed from the land of the Whitneys. Consequently, for the purposes of this case, the movant was not harmed by the instruction that the jury were to treat the respective lands as coterminous, and decide whether the sand was taken from the land of the movant or that of the Whitneys; and this is especially true where counsel for the movant acquiesced in the declared intention of the court to so instruct the jury. In the circumstances the instruction that the properties were coterminous could not have effected the verdict of the jury.

2. The evidence was sufficient to support the verdict for the claimants, and the judge did not err in overruling the plaintiff's motion for a new trial.

Judgment affirmed. All the Justices concur.