
    Colbert et al. v. Atlanta & Charlotte Air-Line Railway Co.
    No. 9583.
    February 16, 1934.
    
      Hamilton Kimsey and J. B. Jones, for plaintiffs in error.
    
      Wheeler & Kenyon, B. J. Kimsey, and McMillan & Krwin, contra.
   Atkinson, J.

This is an action of complaint for land. On the first trial a verdict was directed for the defendant. On exception the judgment of the trial court was reversed. Atlanta & Charlotte Air-Line Railway Co. v. Colbert, 171 Ga. 196 (154 S. E. 909). On a subsequent trial, the defendant having amended his answer, a verdict was returned for the plaintiff. The defendant’s motion for a new trial was overruled, and he assigns error on that judgment.

1. The court instructed the jury: “In that connection, you are instructed that if the strip of land fifty feet broad is included in the deeds of both the defendant and the plaintiff, and the plaintiff was in possession of a part of the land conveyed by the deed to it, the occupancy by the defendant of a part of the strip of land fifty feet broad can not ripen into prescriptive title as against the plaintiff company.” Held, that this charge was not erroneous on the ground, as contended, that it was not authorized by the evidence, in that (a) the evidence showed that the plaintiff was never in possession of any part of the property after defendant took possession under his deed; (b) there is no evidence that defendant had actual notice of plaintiff’s claim to possession. Nor was said charge erroneous on the ground, as contended, that it stated a principle of law inapplicable to the facts of the case, and was calculated to confuse the jury.

2. The court instructed the jury: “Constructive possession of lands is where a person having paper title to a tract of land is in actual possession of only a part thereof. In such a case the law construes the possession to extend to the boundary of the tract. Hence, adjacent owners may be in constructive possession of the same land, being included in the boundaries of each tract. In such cases, no prescription can arise in favor of either.” This charge was not erroneous, as contended, upon similar grounds as those set forth in the preceding division.

3. The evidence was sufficient to support the verdict for the plaintiff, and there was no error in refusing a new trial.

Judgment affirmed.

All the Justices concur.  