Real Property - T. Daniel Brannan, Stephen M. Lamastra, and William J. Sheppard

• Jurisdiction: United States,Federal
• Publication year: 1995
• Citation: Vol. 47 No. 1

Real Propertyby T. Daniel Brannan*

Stephen M. LaMastra**and

William J. Sheppard***

This Article surveys case law and legislative developments in the Georgia law of real property for the period June 1, 1994, to May 31, 1995. The authors do not endeavor in this Article to comment upon every case or statute that touches on the law relating to real property. Instead, this Article is intended to provide practitioners with a convenient guide which focuses on developments of some significance, either by virtue of clarification of the law in a confused area or by its substantial effect on the practice generally.

I. Land Lines and Boundaries

The appeal in Purcell v. C. Goldstein & Sons, Inc.,¹ arose out of a long-standing dispute between the parties concerning the correct line dividing their respective properties.² Goldstein & Sons, Inc. ("Goldstein") and Purcell own adjacent parcels of real property in Baldwin County.³ The civil action, which is the subject of the current appeal,

* Partner in the firm of Morris, Manning & Martin, L.L.P., Atlanta, Georgia. Georgia State University (A.B., 1979); Mercer University (j.d., 1982). Member, State Bar of Georgia. began when Goldstein filed an action "seeking establishment of the correct property line, a declaration that [Purcell's] house encroached on [Goldstein's] property, and an injunction against [Purcell's] continued encroachment on [Goldstein's] property."⁴ After a full trial, the jury found in favor of Goldstein with regard to the location of the property line and found that Purcell's house encroached on Goldstein's property. However, the jury also requested that Purcell be permitted to keep his house where it was. The trial court entered a judgment based on the jury's verdict, which included a statement that Purcell was permitted "to keep the house where it was as a 'permissive encroachment.'"⁵

Purcell appealed the trial court's decision, asserting two enumerations of error. First, he argued that the court improperly admitted evidence without which there would have been no support for the judgment. Specifically, Purcell argued that a plat prepared by Goldstein's surveyor was inadmissible because it failed to meet the technical requirements of the Official Code of Georgia Annotated ("O.C.G.A.") section 15-6-67.⁶ The court rejected the argument and found that the requirements contained in O.C.G.A. section 15-6-67 related only to the recordation of plats and not to their admissibility as evidence in court proceedings.⁷ The court found that a plat's failure to meet the requirements for recordation had no effect on the admission of the plat for purposes of illustrating "other competent testimony regarding the boundaries]" shown on that plat; it simply means that the plat is not "presumptive evidence" of its contents.⁸

Purcell also argued that the trial court's judgment conflicted with the intent of the jury's verdict because the "injunction as worded will not permit [Purcell] to go onto [Goldstein's] property to maintain the portion of the structure which encroaches on [Goldstein's] property." Purcell argued that an easement allowing him to maintain his house was implied in the jury's verdict.⁹ The court rejected that argument and concluded that the jury did not grant Purcell an easement, but had granted him only an indulgence "notwithstanding his illegal encroachment on [Goldstein's] property."¹⁰

The Supreme Court's affirmation of the trial court's verdict in Purcell is important because of the statement concerning the evidentiary effect of a map or plat that is not drawn in proper form for recording. The court's opinion indicates that evidence in the form of a properly drawn and recorded plat creates an evidentiary presumption that the items depicted on it are correct. Further, even a non-recordable plat is relevant evidence that may be used to support other testimony concerning the land depicted in the plat.¹¹

The dispute in Phelps v. Huff¹² revolved around the location of a boundary line between two adjoining land lots. The boundary had been drawn in two different locations by various surveyors. The two properties at issue were originally part of a 275-acre farm owned by F.N. Carter ("Carter"). In 1954, Carter divided the farm among his seven children, with each child receiving one forty-acre Land Lot. Sarah Stubbs received Land Lot 98 ("Lot 98"), and Endicott received Land Lot 97 ("Lot 97"), which adjoined Lot 98 to the west.¹³

In 1957, at the request of Endicott and Stubbs, Robinson surveyed Lots 97 and 98. While present on the two properties to conduct his survey, Robinson showed Endicott and Stubbs iron pins which he had set indicating the corners and mid-point of the line forming the common boundary between Lots 97 and 98. Robinson testified that both Endicott and Stubbs agreed that the iron pins he set were placed along the true boundary between their two properties.¹⁴ At various times over the next thirty years, the boundary between Lots 97 and 98 was resurveyed, and each time the boundary line was indicated as lying approximately thirty-five to forty-five feet east of the boundary drawn by Robinson, increasing the size of Lot 97 and decreasing the size of Lot 98.¹⁵ Endicott sold the portion of Lot 97 which adjoined Lot 98 to the plaintiffs in this case; the Phelps, the Osbornes, and McElroy. Ms. Bill Huff is the daughter of Stubbs and owns the portion of Lot 98 adjacent to Lot 97.¹⁶ The actual dispute over the exact location of the boundary between Lots 97 and 98 began in 1988, when Huff's attorney wrote letters to the Phelpses, the Osbornes, and McElroy claiming the line drawn by Robinson was the correct boundary. Thereafter, Huff began preparations to build a fence along the boundary as marked by the line drawn by Robinson in 1957. Following a trial, the jury entered a verdict in favor of Huff, finding the location of the boundary line as that originally drawn by Robinson.¹⁷

On appeal, plaintiffs challenged several evidentiary decisions reached by the trial court and argued that a jury instruction given by the court constituted reversible error. Plaintiffs' first argument involved a letter written by Endicott in 1984 to a real estate agent in connection with Endicott's attempt to sell portions of Land Lot 97.¹⁸ In that letter Endicott referred to the survey performed by Robinson in 1957 and stated that both she and Stubs "were present at the time of the survey and we both agreed with Robinson as to the property lines and accepted his survey as correct."¹⁹ Both prior to trial and upon Huff's attempted introduction of the letter at trial, plaintiffs objected on the basis that the letter contained hearsay.²⁰ The court of appeals noted that O.C.G.A. section 24-3-13 allows the admission of "'[traditional evidence as to ancient boundaries and landmarks.'"²¹ Therefore, the court of appeals concluded that the letter was properly admitted.²²

Plaintiffs also objected to the admission at trial of opinion testimony from a land surveyor and real estate attorney. In response to direct questioning by Huff, Tibbets, a registered surveyor, testified that a surveyor has authority to establish a property line '"in the case of a new parcel—creating a new parcel of land.'"²³ Plaintiffs did not object to that testimony. In response to cross-examination questioning, Tibbets again testified that a "surveyor could establish for a property owner '[i]n the case of a subdivision or a property line agreement.'"²⁴ On redirect examination, Huff asked Tibbets if Robinson established the "common line between the adjoining landowners" based on the facts that no prior dividing line had been surveyed and that the property owners' acceptance of his survey was correct.²⁵ Plaintiffs finally objected to that question on the basis that it called for a legal opinion.²⁶

The court of appeals noted that "'[w]here a party fails to object to certain inadmissible evidence, but later objects to substantially the same evidence, the objection should be overruled because the failure to object the first time makes this harmless error.'"²⁷ Based on that principal, the court concluded that plaintiffs' failure to object to the prior questioning on the same point waived any objection they might have had with regard to the final statement by Tibbets.²⁸ The court also stated that Tibbets' opinion "was not a legal one but one of fact."²⁹ The court stated that Tibbets had testified from the viewpoint of an experienced surveyor and testified based on his knowledge and practice of the profession concerning the effect of an agreement between adjoining property owners. The court indicated that such testimony was a proper subject for expert opinion testimony.³⁰

Plaintiffs also objected to testimony from Huff's attorney, Benson. Huff asked Benson a hypothetical question, asking him to state his opinion, as a lawyer, of the effect of the acquiescence of adjoining landowners in accepting a survey of the boundaries of their properties as correct.³¹ The court of appeals found that "Benson's opinion 'as a lawyer' can only be interpreted as his opinion that this agreement would establish the line as a matter of law."³² As noted by the court, that determination was the responsibility of the jury.³³ However, because the court instructed the jury that they were to determine the location of the property line under the legal theories of acquiescence or adverse possession and instructed the jury that they were to determine the credibility of the witnesses and weight of the evidence, the appellate court concluded that admission into evidence of Benson's opinion was harmless error.³⁴

Finally, plaintiffs argued that the trial court should not have given Jury Charge Number 10 over their objection. The text of the jury charge at issue is as follows:

[W]here the owners of adjoining property agree upon a line as dividing their property and they acquiesce in that line either by acts or by declarations, that line becomes the...