Georgia Power Co

v. Irvin, 267 Ga. 760, 482 S.E.2d 362 (1997). Quitclaim deed held not impediment to adverse possession. — Quitclaim deed to the disputed property, executed 40 years earlier by plaintiff ’s decedent in favor of plaintiff ’s predecessor in title, was no impediment to decedent’s adverse possession of the property, since there was no evidence of mistake or that the decedent remained in possession after executing the deed, but there was evidence that the decedent was in possession for 30 years preceding the litigation. Brown v. Williams, 259 Ga. 6, 375 S.E.2d 835 (1989). Evidence supporting claim of adverse possession. — Indicia of ownership, including cultivating garden plots, harvesting trees, creating and maintaining roads, hunting, and excluding members of another family 44-5-161 from use of the property were sufficient to provide notice of the occupier’s adverse claim. Armour v. Peek, 271 Ga. 202, 517 S.E.2d 527 (1999). Evidence that the possessors and their predecessors in interest were in continued possession of the property since 1906 and that they fenced, maintained, landscaped and put the property to various exclusive uses authorized the special master’s finding that the possessors acquired prescriptive title. Childs v. Sammons, 272 Ga. 737, 534 S.E.2d 409 (2000). Trial court properly found that a church acquired prescriptive title to a portion of the disputed land bordering that of the adjacent landowners, setting a boundary line between the two parcels, upon sufficient evidence of the church’s adverse possession, the paper trail recognizing the church’s use and possession of the disputed property for the requisite time frame, and the setting of the boundary line almost 30 years earlier imputing personal knowledge to one of the owners of the adjacent land. Mobley v. Jackson Chapel Church, 281 Ga. 122, 636 S.E.2d 535 (2006). Evidence insufficient to support claim of adverse title. — Neighbor’s claims of ownership as to a tract of land was denied because the evidence did not support the neighbor’s alleged use of the tract as being continuous, exclusive, nor uninterrupted for the requisite 20-year period, and the jury could have reasonably decided that this evidence demonstrated interruption of possession or lack of continuity and exclusivity. Jackson v. Tolliver, 277 Ga. 58, 586 S.E.2d 321 (2003). Trial court did not err when the court concluded that a buyer’s tax deed did not ripen by prescription into a fee simple title because neither the buyer’s payments of taxes nor occasional cleanup and mowing areas were sufficiently notorious or exclusive as to constitute actual possession. Washington v. McKibbon Hotel Group, Inc., 284 Ga. 262, 664 S.E.2d 201 (2008). Trial court properly granted a renter summary judgment and removed an affidavit asserting adverse possession filed by the owner of the first floor of a building with regard to a 1,350 square foot space on the second floor of the building as the renter established that title was acquired via a quit claim deed, that the renter changed the 528 door at the base of the stairwell and had sole access to the second floor space, as well as posted no trespassing signs. The owner of the first floor failed to establish a continuous, exclusive, and uninterrupted possession of the space based on sporadic repairs made to the roof of the entire building. MEA Family Invs., LP v. Adams, 284 Ga. 407, 667 S.E.2d 609 (2008). Petition to quiet title based on adverse possession claim properly granted. — Trial court properly granted executor’s petition to quiet title based on the claim that the executor’s grandfather acquired the property through adverse possession, because the grandfather and his lineal descendants continuously occupied the property and openly declared to others that they owned the property; thus, possession of the property by the executor’s family was public, continuous, exclusive, uninterrupted and peaceable, and under a claim of right as required under O.C.G.A. § 44-5-161(a). Cooley v. McRae, 275 Ga. 435, 569 S.E.2d 845 (2002). Claim of Right Title based on adverse possession must be accompanied by claim of right. Hardison v. McCreary, 304 F.2d 699 (5th Cir. 1962). ‘‘Claim of right’’ is synonymous with claim of title and claim of ownership; while this does not mean that the possession must be accompanied by a claim of title out of some predecessor, there must be some claim of title in the sense that the possessor claims the property as the possessor’s own. Ewing v. Tanner, 184 Ga. 773, 193 S.E. 243 (1937); Allen v. Allen, 196 Ga. 736, 27 S.E.2d 679 (1943). Hostile possession or possession under claim of right are legal equivalents for all practical purposes. Ewing v. Tanner, 184 Ga. 773, 193 S.E. 243 (1937). Possession, if held under claim of right, is referred to as title, actual or supposed, under which the right of possession is claimed. Patellis v. Tanner, 199 Ga. 304, 34 S.E.2d 84 (1945). Color of title is anything in writing, purporting to convey title to land, which defines the extent of the claim. McCrea v. Georgia Power Co., 179 Ga. 1, 174 S.E. 798 (1934), later appeal, 187 Ga. 708, 1 S.E.2d 664 (1939). Color of title is a writing, upon the writ- 44-5-161 ing’s face professing to pass title, but which does not do it, either from a want of title in the person making the writing, or from the defective conveyance that is used — a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law. Fraser v. Dolvin, 199 Ga. 638, 34 S.E.2d 875 (1945). Squatter defined. — Person entering upon lands, not claiming in good faith the right to do so by virtue of any title of one’s own or by virtue of some agreement with someone else whom one believes to hold the title, is called a squatter. Hannah v. Kenny, 210 Ga. 824, 83 S.E.2d 1 (1954). Claim must be honestly entertained before prescription can arise under an asserted claim of right. Mayor of Forsyth v. Hooks, 182 Ga. 78, 184 S.E. 724 (1936). Honesty and good faith required. — Although a given paper may constitute color of title, no prescription can be based thereon unless the claimant entered thereunder honestly and in good faith. Johnson v. Key, 173 Ga. 586, 160 S.E. 794 (1931). An outstanding recorded title will not prevent the ripening of a title by prescription if the possessor enters in good faith under written evidence of title from another. Hearn v. Leverette, 213 Ga. 286, 99 S.E.2d 147 (1957). No paper title is necessary; nothing but actual bona fide possession, and the claimant is not required to show that the claimant went into possession bona fide. Evans v. Baird, 44 Ga. 645 (1872); Shiels v. Roberts, 64 Ga. 370 (1879); Hall v. Gay, 68 Ga. 442 (1882). Deed void for uncertainty of description cannot be foundation of color of title upon which a prescriptive title may rest. Etowah Mining Co. v. Parker, 73 Ga. 51 (1884). Evidence of claim of right or title. — Claim of right or title may be evidenced by acts or conduct in relation to the property possessed, which are inconsistent with the true owner’s title. Ewing v. Tanner, 184 Ga. 773, 193 S.E. 243 (1937); Hasty v. Wilson, 223 Ga. 739, 158 S.E.2d 915 (1967). Deed, reciting that levy under which a tax sale took place was made by a constable, is not valid as a muniment of title, but is only color of title. McDonald v. Wimpy, 206 Ga. 270, 56 S.E.2d 524 (1949). Because the heirs produced evidence rais- 529 44-5-161 Claim of Right (Cont’d) ing a material question of fact as to whether their ancestors possessed certain property for the requisite period of time under a claim of right pursuant to O.C.G.A. §§ 44-5-161(a), 44-5-163, and 44-5-165, the record owner was not entitled to summary judgment. Walker v. Sapelo Island Heritage Auth., 285 Ga. 194, 674 S.E.2d 925 (2009). Equitable claim in divorce proceeding. — Wife acquired a prescriptive title to property through adverse possession because her equitable claim to ownership in a divorce proceeding gave sufficient notice of intent to possess property adversely. Walters v. McNeese, 257 Ga. 440, 360 S.E.2d 268 (1987). Inventory of property in state entity’s records. — State’s claim of right to property is evidenced by its inclusion in an inventory of the property of the Western and Atlantic Railroad as the state is the owner of the Western and Atlantic Railroad. Seignious v. Metropolitan Atlanta Rapid Transit Auth., 252 Ga. 69, 311 S.E.2d 808 (1984). Claim of right will be presumed from assertion of dominion, particularly if the assertion of dominion is made by the erection of valuable improvements. Chancey v. Georgia Power Co., 238 Ga. 397, 233 S.E.2d 365 (1977). Judgment of probate court is color of title. — Judgment of a probate court purporting to vest title to the land of a decedent in a widow for a year’s support is generally color of title on which prescription can be based. Johnson v. Key, 173 Ga. 586, 160 S.E. 794 (1931). Sheriff ’s deed may be color of title, even though the deed is defective. Martin v. Clark, 190 Ga. 270, 9 S.E.2d 54 (1940). Claim lacking element of hostility fails to show good title. — Plaintiff did not show a good prescriptive title by seven years adverse possession under color of voluntary deed made to her by husband, intervenors’ brother, since the necessary element of hostility inherent in adverse possession was lacking, by reason of the fact that, before the lapse of seven years from the beginning of plaintiff ’s possession, plaintiff ’s vendee, defendant, in actual possession, had under the undisputed evidence recognized that his holding of the land was subject to any valid claim of the intervenors, and plaintiff also had partly recognized their claim. Pittman v. Pittman, 196 Ga. 397, 26 S.E.2d 764 (1943). Title fails for lack of claim of right. — When the tenant of the immediate predecessor in title to the defendants used a portion of plaintiff ’s adjoining property in such a manner as to be considered an adverse use as against the plaintiffs, but the owners (defendant’s predecessors in title) during this period made no claim of a right to the use of plaintiffs’ property, and expressly denied any claim of benefit by reason of the use of their tenant, one of the essential elements of prescription is lacking, as the possession through the tenant was not accompanied by any claim of right on its part as the owner and the defendants’ own use of the property was for less than seven years. Olsen v. Noble, 209 Ga. 899, 76 S.E.2d 775 (1953). Permissive Possession Permissive possession cannot be foundation of prescription until an adverse claim and actual notice to the other party are shown. Johnson v. Key, 173 Ga. 586, 160 S.E. 794 (1931); Tanner v. John Hancock Mut. Life Ins. Co., 73 F.2d 382 (5th Cir. 1934), cert. denied, 295 U.S. 733, 55 S. Ct. 644, 79 L. Ed. 1682 (1935); Harris v. Mandeville, 195 Ga. 251, 24 S.E.2d 23 (1943); Blanton v. Moody, 265 F.2d 533 (5th Cir. 1959); Dickson v. Davis, 237 Ga. 883, 230 S.E.2d 279 (1976). Possession inceptively permissive cannot become adverse until the possessor notifies the one who placed the possessor in possession that the possessor is holding adversely. Rucker v. Rucker, 136 Ga. 830, 72 S.E. 241 (1911). It is necessary that, during the whole time required for the ripening of prescription, there should be something to give notice that another is doing such acts or holding out such signs as to indicate the existence of a possession adverse to the true owner. Clark v. White, 120 Ga. 957, 48 S.E. 357 (1904); Walker v. Steffes, 139 Ga. 520, 77 S.E. 580 (1913). Private way may not be acquired by prescription if use of the private way is with the owner’s permission until an adverse claim is made and actual notice is given to the owner or party in possession. Greer v. Piedmont 530 Realty Invs., Inc., 248 Ga. 821, 286 S.E.2d 712 (1982). Possession was permissive during period when parties went into possession of their tract under an oral agreement to purchase the land from the owner, and did not receive a deed to the property until the purchase price was paid; they could not prescribe against the vendor until the purchase money was paid in full. Burk v. Tyrrell, 212 Ga. 239, 91 S.E.2d 744 (1956). Permissive possession prevents prevailing under theory of adverse possession. Foster v. Adcock, 207 Ga. 201, 60 S.E.2d 334 (1950). Permissive possession is presumed to be for another, the rightful owner. Ewing v. Tanner, 184 Ga. 773, 193 S.E. 243 (1937). If personalty of tenant is left behind by the tenant, possession by the landlord is permissive, and cannot be the foundation of a prescription until an adverse claim and actual notice to the other party. Cozart v. Johnson, 181 Ga. 337, 182 S.E. 502 (1935). Possession by heirs. — Possession by heirs is permissive, not adverse, and no prescription can be based on such possession as against the grantees in security deeds. Boswell v. Underwood, 106 Ga. App. 675, 127 S.E.2d 870 (1962). When an heir, in possession, held under a deed from the other heirs of the grantor, who had executed a security deed to the plaintiff and, as an heir personally, still owned and claimed in part only by descent from the grantor in plaintiff ’s security deed, that heir ‘‘stood in the shoes’’ of such grantor, and could not set up an adverse prescriptive title against the plaintiff grantee in the security deed. Sweat v. Arline, 186 Ga. 460, 197 S.E. 893 (1938). Possession and valuable improvements alone are not sufficient bases for prescriptive claim in favor of a grantor against a grantee because the possession is permissive, and any improvements put on the land by the grantor accrue to the benefit of the grantee in the absence of a bona fide adverse claim of title and notice to the grantee. Fuller v. Calhoun Nat’l Bank, 59 Ga. App. 419, 1 S.E.2d 86 (1939). No prescriptive right acquired by permissive encroachment. — When the plaintiff and her husband had encroached upon lands now owned by the defendant with the permission of the previous owner, the plain- 44-5-161 tiff did not acquire any prescriptive right by the permissive encroachment made upon such lands since neither the plaintiff nor her husband gave notice at any time that they were claiming adversely to the rights of the defendant. McClung v. Schulte, 214 Ga. 426, 105 S.E.2d 225 (1958). Grantor who never surrenders possession to grantee does not hold adversely to grantee. Jay v. Welchel, 78 Ga. 786, 3 S.E. 906 (1887); Melson v. Leigh, 159 Ga. 683, 126 S.E. 718 (1925). Vendor does not hold adversely to vendee if the vendor sold property to his wife and continued in possession without making her a deed thereto as he promised. McArthur v. Ryals, 162 Ga. 413, 134 S.E. 76 (1926). Adverse possession not sustained against security deed holder. — One in possession of property who makes payments to the holder of a security deed on the property, such payments being either rent or payments on an indebtedness that the property itself secured, cannot sustain a claim of adverse possession against the security deed holder as a matter of law. Dickson v. Davis, 237 Ga. 883, 230 S.E.2d 279 (1976). No adverse possession if possessor of property admits making payments of rent to record title holder. Dickson v. Davis, 237 Ga. 883, 230 S.E.2d 279 (1976). Acquiescence to division line between land of coterminous proprietors not mere permissive possession. — If location of the line between two coterminous proprietors is uncertain, and the proprietors, conceding the title of each to each one’s separate lot, erect at joint expense a fence intended as marking the line of division, and both acquiesce therein by exercise of actual possession up to the fence, such possession of each is in right of the possessor and, being so, is not mere permissive possession within the meaning of this statute. Lockwood v. Daniel, 193 Ga. 122, 17 S.E.2d 542 (1941) (see O.C.G.A. § 44-5-161). Possession is not permissive if the evidence shows a claim of right under an equitable title based upon an oral contract of sale, the payment of a valuable consideration, and the erection of valuable improvements. Serritt v. Johnson, 223 Ga. 620, 157 S.E.2d 484 (1967). Tenant at sufferance is not in possession by permission of the landlord, but as a result 531 Permissive Possession (Cont’d) 44-5-161 Wilkerson, 222 Ga. 282, 149 S.E.2d 700 (1966). of the tenant’s laches or neglect. Reid v.