Fraser v. Kichline Et Al., 108 Ga. App. 701, 134 S.E.2d 492 (1963)

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Whelchel, Dunlap & Gignilliat, Wm. R. Gignilliat, contra.Stow & Andrews, Robert E. Andrews, for plaintiff in error.

1. The case of Long v. Robertson, 80 Ga. App. 874, 879 (57 SE2d 851). We disagree with protestant that these cases are distinguishable from that before us, and disagree further that the issues of establishment of a dividing line by acquiescence or adverse possession were not raised by the evidence.

Special ground 1 has no merit.

2. Special ground 2 of the motion for new trial objects to the asserted failure of the trial court to authorize the jury to return a verdict "that the processioners had made a new line." It is urged that this possible verdict was eliminated from the jury's consideration by the court's omission of it when repeating the verdicts the jury could find. As the court had previously fully instructed the jury on the three proper verdicts, we gravely question the validity of the argument. We cannot, however, rule upon the point, as the ground is incomplete.

The rule to be derived with respect to the three proper verdicts in processioning cases, first approved in McCollum v. Thomason, 84 Ga. App. 689, 694 (1) (67 SE2d 195), and by Boyd v. Hill, 94 Ga. App. 686, 688 (2) (96 SE2d 222), is that instruction as to each of the three verdicts is proper only where there is evidence which tends to support each of them. These cases could not have held otherwise, for it is basic in our law that the evidence in every case must support the verdict in order for the verdict to be upheld. In Payne, where no error was found in the trial court's instruction to the jury that they find the true line to be either that claimed by the applicant or the protestant, it was stated that, "All the evidence tended to support the contentions of one or the other of the parties."In Boyd, where the trial court imposed a similar restriction, the court found error and said that, "The evidence authorized any one of the above [3] findings."

Special ground 2 of the motion for new trial does not detail or point out to the court any evidence which tends to support the theory that the processioners "had made a new line" which they are prohibited from doing. The failure by the plaintiff in error to specify this evidence in the special ground renders it incomplete, and we cannot consider it.

3. The general grounds of the motion have no merit as the evidence amply supported the verdict.

Judgment affirmed. Hall and Pannell, JJ., concur.

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