Milikin v. Smith

Per curiam.

The parties to this suit have bitterly contested for several years the ownership of a narrow strip of land on the boundary between their lots on St. Simons Island. Appellant constructed a fence on the disputed area, and appellee Henry Smith demolished it with a sledge hammer. This provoked appellant to sue appellee to establish that the boundary line between his lot (No. 165) and appellee’s lot (No. 166) was that of an old wire fence erected in 1938 and removed in 1974. This boundary is allegedly marked at the present time by monuments in the form of iron posts filled with concrete.

Appellant alleged that he had title up to the (disputed) boundary line by reason of adverse possession. Moreover, he attached to his complaint a survey establishing the line according to his contentions, and alleged that this survey was prepared pursuant to an oral contract establishing the line in that manner. Appellant also asserted that the earlier deeds of the parties are vague, and that his survey is an accurate depiction of the boundary independent of adverse possession.

The trial court granted summary judgment to appellee.

In our opinion, the movant for summary judgment failed to establish the nonexistence of any genuine issue of fact. See Stephens v. Stephens, 239 Ga. 528 ( 238 SE2d *804 71 ) (1977), and cits.

Argued January 17, 1978 Decided February 22, 1978. Rountree & Tuten, George M. Rountree, for appellant. Reid W. Harris, for appellees.

The trial court erred in granting appellee’s motion for summary judgment.

Judgment reversed.

All the Justices concur.