Thompson et al. v. Fouts

Supreme Court of Georgia1948-04-13No. No. 16179

203 Ga. 522

Summary · law.co

Holding. The judgment for the plaintiff in the title dispute was affirmed, as the jury's verdict finding that the defendant had not established prescriptive title through adverse possession was supported by evidence and not so unreasonable as to warrant reversal.

Thompson and others brought suit against Fouts over title to a 40-acre parcel of land. Fouts claimed he had acquired prescriptive rights through adverse possession based on cultivating part of the land and maintaining fencing from 1902 onward. The jury found for Thompson, who held legal title through an unbroken chain of grants from the state. On appeal, Thompson challenged the trial court's denial of a motion for new trial.

The appellate court upheld the jury verdict, finding that the evidence regarding which specific land Fouts had cultivated and fenced was too imprecise to establish that he had actually possessed the disputed 40-acre lot itself. Additionally, testimony showed that one of Thompson's predecessors had taken possession in 1925 and removed fencing, and though the fence was later restored by another predecessor in 1933, these circumstances created genuine factual disputes about whether Fouts maintained the continuous adverse possession required by law. Because evidence existed on both sides of these factual questions and the jury's verdict was not so clearly contrary to the evidence as to shock the conscience, the court would not overturn the jury's decision.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether testimony regarding cultivation and fencing was sufficiently definite to establish that the defendant possessed the specific disputed 40-acre parcel
Whether the defendant maintained continuous and uninterrupted adverse possession given evidence of the plaintiff's predecessor taking possession and removing fencing in 1925
The standard for appellate review of jury verdicts in adverse possession cases

Procedural posture

The defendant appealed from the trial court's overruling of his motion for a new trial after a jury verdict in favor of the plaintiff on the question of land title.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Jenkins, Chief Justice.

1. “Possession to be the foundation of a prescription must be in the right of the possessor, and not of another; must not have originated in fraud; must be public, continuous, exclusive, uninterrupted, and peaceable, and be accompanied by a claim of right. Permissive possession cannot be the foundation of a prescription, until an adverse claim and actual notice to the other party.” Code, § 85-402.

2. “Adverse possession is usually a mixed question of law and fact — 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.” Paxson v. Bailey & Park, 17 Ga. 600.

3. “Where there is some evidence on both sides, even though the verdict be against the strong preponderance of the testimony, unless that preponderance be so great as to be suggestive of improper bias or gross misapprehension, and that to an extent which shocks the understanding and moral sense, a reviewing court will not disturb that verdict.” Powell v. Bigley, 14 Ga. 41; Porter v. Kolb, 46 Ga. 266; Stevens v. Middlebrooks, 77 Ga. 81.

4. The exception in the instant case, involving title to an entire 40-acre land lot, is to the overruling of a motion for new trial based only on the general grounds. The jury returned a verdict for the plaintiff who relied upon an unbroken chain of title back to the State grant, against the defendant who sought to establish prescriptive title by reason of having cultivated a portion of the lot and having had the remainder under fence from 1902 until 1917, after which the entire lot was claimed to have been under fence. A question of fact was presented by the evidence, hereinafter set forth in the statement of facts, as to whether or not any of the land testified to by the defendant and his witnesses as having been under cultivation prior to 1917 was in fact a part of the disputed lot; and since there was no evidence by way of plat or diagram which would indicate the actual boundaries of the lot, the testimony of various witnesses with respect to different parcels of land having been under cultivation by the defendant was too vague, indefinite, and un certain to demand a finding that the land testified to was a part of the 40-acre lot here involved; nor does the testimony show what portion of the lot was under fence prior to 1917. Furthermore, an additional question of fact was presented as to whether or not the defendant actually held such land adversely, according to the definition, for the prescribed 20 years subsequently to 1917, since there was testimony that one of the plaintiff’s predecessors in title had taken possession of the disputed lot in 1925 and exercised ownership thereof by tearing down the fence testified to, and by cutting timber thereon; and in view of other testimony, even though disputed, that such fence was later restored and extended to include the disputed lot by permission of another of the plaintiff’s predecessors in title in 1933. Accordingly, under the rulings set forth in the preceding division of this syllabus the determination by the jury of the questions of fact thus presented by the evidence will not be disturbed.

No. 16179.

April 13, 1948.

Judgment affirmed.

All the Justices concur, except Candler, J., disqualified.

G. Fred Kelley and E. C. Brannon, for plaintiffs in error.

Joe K. Telford, contra.