GA Code § 44-5-160 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 5 - Acquisition and Loss of Property|Article 7 - Prescription|§ 44-5-160. Nature of Title by Prescription

 Title by prescription is the right to property which a possessor acquires by reason of the continuance of his possession for a period of time fixed by law.   (Orig. Code 1863, § 2637; Code 1868, § 2636; Code 1873, § 2678; Code 1882, § 2678; Civil Code 1895, § 3583; Civil Code 1910, § 4163; Code 1933, § 85-401.)   Law reviews.   - For article, "Some Aspects of the Law of Easements," see 9 Ga. St. B.J. 287 (1973).   JUDICIAL DECISIONS    Object of doctrine of prescription is to make a bad title good upon compliance with the necessary requisites; of course, if a person purchases land in bad faith, knowing that the title one purchases is fraudulent, it can never ripen into a good title. Latham v. Fowler, 192 Ga. 686, 16 S.E.2d 591 (1941).    Foundation of prescription is possession. Yundt v. Davison, 186 Ga. 179, 197 S.E. 248 (1938).   Prescriptive time interrupted.    - Trial court erred in granting summary judgment on prescription and acquiescence grounds to the contestants to a tract of land without determining the validity or sufficiency of the legal descriptions of either deed to the property as there was insufficient evidence of possession and support for prescriptive title, and the construction of a driveway, apparently on the disputed tract, was interrupted by a quiet title action filed within seven years by the heirs of the property. Henson v. Tucker, 278 Ga. App. 859, 630 S.E.2d 64 (2006).    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).    State may obtain title to property by prescription. Seignious v. Metropolitan Atlanta Rapid Transit Auth., 252 Ga. 69, 311 S.E.2d 808 (1984).    Squatter can never gain prescriptive title to land no matter how long the squatter holds the possession; the squatter's possession is never considered as adverse. Mayor of Forsyth v. Hooks, 182 Ga. 78, 184 S.E. 724 (1936).    Requirement of continuity of possession is one of substance, not of absolute mathematical continuity, provided there is no break so as to make a severance of two possessions. Anneberg v. Kurtz, 197 Ga. 188, 28 S.E.2d 769 (1944).    Good faith is one of main elements when doctrine of prescription is involved in an action of ejectment. Latham v. Fowler, 192 Ga. 686, 16 S.E.2d 591 (1941).    If a person buys land in good faith, believing the person is obtaining a good title, and enters into possession thereof, and remains there continuously, uninterruptedly, peaceably, etc., for seven years, that possession ripens into a good title, whether the title the person purchased originally was good or not. Latham v. Fowler, 192 Ga. 686, 16 S.E.2d 591 (1941).    An outstanding recorded title will not prevent the ripening of a title by prescription since 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).    Question of good faith is ordinarily one of fact for jury. Latham v. Fowler, 192 Ga. 686, 16 S.E.2d 591 (1941).   "Appurtenants" construed.    - Word "appurtenants" in a deed, when none are specified, will not be construed to convey anything except what was legally appurtenant to the lands in the hands of the grantor; it does not convey an easement in the land of another which has not ripened into a legal right and has not become attached to the premises conveyed, unless accompanied by proper words describing it and showing the intention of the grantor to pass it. Olsen v. Noble, 209 Ga. 899, 76 S.E.2d 775 (1953).    Right of prescription is measured by actual user, and not by capacity for more extended use, and the right does not begin to run until an actionable injury has been inflicted. Goble v. Louisville & N.R.R., 187 Ga. 243, 200 S.E. 259 (1938).    Right to maintain private nuisance may be acquired by prescription. Anneberg v. Kurtz, 197 Ga. 188, 28 S.E.2d 769 (1944).    Evidence showed that defendant was in actual adverse possession of land involved when the plaintiffs filed suit against the defendant in 1955, and that the defendant had been in such possession under a claim of right or ownership continuously and exclusively since 1934, under circumstances which would ripen the defendant's possession into a good prescriptive title, since actual possession was delivered to the defendant by defendant's mother by execution and delivery of a warranty deed which purported to convey to the defendant the property in question, the defendant and the defendant's tenants since then continuously occupied and used the property to the exclusion of all others, the defendant improved the property by the construction of two dwelling houses, three garages and a barn, which buildings the defendant has since kept repaired, the defendant paid annual taxes and fire insurance premiums, the defendant had the land regularly cultivated in annual crops, and kept the defendant's livestock, poultry, and farming equipment on the land, and the defendant sold two described portions of the land in 1954 and 1955. Hughes v. Heard, 215 Ga. 156, 109 S.E.2d 510 (1959).   Exclusivity not shown.    - In a quiet title action, there was evidence to support the jury's finding that the claimant did not satisfy the elements of adverse possession under O.C.G.A. § 44-5-160 et seq., since the evidence showed that the claimant did not hold the property exclusively as the owner had given permission to others to hunt on the land. Keever v. Dellinger, 291 Ga. 860, 734 S.E.2d 874 (2012).   Title by prescription arises if adverse possession held for 20 years.    - While a prescriptive title may be extinguished by the ripening of a prescription in favor of a subsequent adverse possession, yet if adverse possession is held for 20 years, a title by prescription arises, good against everyone except the state, or persons laboring under legal disabilities, and that title is not lost or impaired by any subsequent abandonment of the adverse possession. Bridges v. Henson, 216 Ga. 423, 116 S.E.2d 570 (1960).   Acquisition of prescriptive title by recorded deed and seven years of actual possession.    - Person claiming under a recorded deed may have constructive possession of lands and may acquire a prescriptive title to all lands which are covered by the deed and are contiguous by having actual possession of a part thereof for a period of seven years. Mincey v. Anderson, 206 Ga. 572, 57 S.E.2d 922 (1950).   Prescriptive right to empty plant refuse into stream acquired.    - When a person, in the operation of a canning plant, has from June 1 to November 1 of each year, for more than 20 years, emptied the refuse from the plant into a nonnavigable stream, the person has thereby acquired a prescriptive right so to do. Anneberg v. Kurtz, 197 Ga. 188, 28 S.E.2d 769 (1944).   Adverse possession of church will support prescriptive title.    - Possession of property for the use of a church by the constituent membership is possession of the church, and if continued adversely for the prescriptive period, will support prescriptive title. Bridges v. Henson, 216 Ga. 423, 116 S.E.2d 570 (1960).    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).   Stringing wire consistently with customary location permissible as within easement.    - When poles and wires were used in the operation of a telephone line or lines over the lands of another, those poles and wires should be considered as having marked or outlined a general area in use according to the usual and ordinary manner; and if the outer limits of this space remains the same for the prescriptive period of 20 years, the resulting easement will apply at least to such general area, so that the stringing of additional wires anywhere therein consistently with customary location is permissible as territorially within the easement, whether or not the identical space to be physically occupied by such wires had ever before been so occupied by other wires. Kerlin v. Southern Bell Tel. & Tel. Co., 191 Ga. 663, 13 S.E.2d 790 (1941).   Easement to flood lands not acquired by maintenance of trestle.    - Railroad company which has for 25 years maintained a trestle and abutments, under which a stream flows, does not thereby acquire a prescriptive easement to flood lands, unless such flooding has been continuous and uninterrupted for a period sufficient to ripen prescription. Goble v. Louisville & N.R.R., 187 Ga. 243, 200 S.E. 259 (1938).    Neither laches nor statute of limitations will run against one in peaceable possession of property under a claim of ownership for delay in resorting to a court of equity to establish one's rights. Reid v. Wilkerson, 222 Ga. 282, 149 S.E.2d 700 (1966).    Title by prescription is substituted for statute of limitations in actions to recover land. Latham v. Fowler, 192 Ga. 686, 16 S.E.2d 591 (1941), later appeal, 206 Ga. 245, 56 S.E.2d 272 (1949).    One who relies on prescriptive title has burden of establishing prescription. Patellis v. Tanner, 199 Ga. 304, 34 S.E.2d 84 (1945).   Adverse possession is usually mixed question of law and fact.    - Whether the facts exist which constitute adverse possession is for the jury to judge; whether, assuming the facts prove to be true, those facts constitute adverse possession is for the court to decide. Olsen v. Noble, 209 Ga. 899, 76 S.E.2d 775 (1953).    Court may decide question of title by prescription as matter of law without submitting the question to the jury. Verdery v. Savannah, F. & W. Ry., 82 Ga. 675, 9 S.E. 1133 (1889).    Cited in Walker v. Steffes, 139 Ga. 520, 77 S.E. 580 (1913); Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931); Beeland v. Butler Payne Lumber Co., 48 Ga. App. 619, 173 S.E. 436 (1934); Ewing v. Tanner, 184 Ga. 773, 193 S.E. 243 (1937); Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80, 3 S.E.2d 91 (1939); Dyal v. Sanders, 194 Ga. 228, 21 S.E.2d 596 (1942); Strickland v. Padgett, 197 Ga. 589, 30 S.E.2d 167 (1944); Powell v. Moore, 202 Ga. 62, 42 S.E.2d 110 (1947); Key v. Stringer, 204 Ga. 869, 52 S.E.2d 305 (1949); Rowland v. McLain, 86 Ga. App. 140, 70 S.E.2d 918 (1952); Burgin v. Moye, 212 Ga. 370, 93 S.E.2d 9 (1956); Pridgen v. Coffee County Bd. of Educ., 218 Ga. 326, 127 S.E.2d 808 (1962); Whitton v. Whitton, 218 Ga. 845, 131 S.E.2d 189 (1963); Little v. Weatherby, 220 Ga. 274, 138 S.E.2d 380 (1964); Hasty v. Wilson, 223 Ga. 739, 158 S.E.2d 915 (1967); Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977); Larkin v. Laster, 254 Ga. 716, 334 S.E.2d 158 (1985); Fort Mt. Container Corp. v. Keith, 275 Ga. 210, 563 S.E.2d 860 (2002).   RESEARCH REFERENCES   Am. Jur. 2d.   - 3 Am. Jur. 2d, Adverse Possession, §§ 1 et seq., 8, 11, 248, 249, 310.   Mistaken Occupant's Right to Recover for Improvements, 2 POF2d 467.   Permissive Possession or Use of Land, 28 POF2d 703.   Acquisition of Title to Property by Adverse Possession, 39 POF2d 261.   Permissive Possession or Use of Land as Defeating Claim of Adverse Possession or Prescriptive Easement, 68 POF3d 239.   C.J.S.   - 2 C.J.S., Adverse Possession, §§ 1, 2, 7. 73 C.J.S., Property, § 55 et seq.   ALR.    - Adverse possession by third party or stranger of property held in trust, 2 A.L.R. 41.    Writing as essential to color of title in adverse occupant of land, 2 A.L.R. 1457.    What will disprove acquiescence by owner essential to easement by prescription in case of known use, 5 A.L.R. 1325.    Adverse possession of railroad right of way, 50 A.L.R. 303.    Adverse possession or prescription in respect of burial lot, 107 A.L.R. 1294.   Tacking adverse possession of area not within description of deed or contract, 17 A.L.R.2d 1128.   Rights derived from use by adjoining owners for driveway, or other common purpose, of strip of land lying over and along their boundary, 27 A.L.R.2d 332.   Acquisition of title to mines or minerals by adverse possession, 35 A.L.R.2d 124.   Right of owner of title to or interest in minerals under one tract to use surface, or underground passages, in connection with mining other tract, 83 A.L.R.2d 665.   Acquisition of title to land by adverse possession by state or other governmental unit or agency, 18 A.L.R.3d 678.   Tacking as applied to prescriptive easements, 72 A.L.R.3d 648.   Scope of prescriptive easement for access (easement of way), 79 A.L.R.4th 604.