Hartwell Railroad Company Railroad brought suit to enjoin Tommy Watkins from continuing to erect improvements on property which is allegedly part of the Railroad’s right-of-way. The Railroad claimed ownership of the property by virtue of an unrecorded 1874 deed to one of its predecessors conveying fee simple title to the land 100 feet on each side of the center line of the railroad track, which would pass through “land known as the Dean tract . . . .” Watkins traced his title back to an earlier deed from the State of Georgia to Alvan Dean. With the parties’ consent, the trial court appointed a special master and ordered that the matter be conducted pursuant to the quiet title provisions of OCGA § § 23-3-60 et seq. The special master concluded that the Railroad had title to the disputed property. The trial court denied Watkins’ request for a jury trial because there was no genuine issue of material fact, and adopted the findings of the special master. The trial court held that the indication in Watkins’ deed that his title extends to the southern right-of-way of the Railroad was sufficient to put him on notice of its existence. It further found that the Railroad’s use and possession for over 100 years also put him on notice. Finally, the court concluded that the Railroad’s possession met the elements for prescriptive ownership, while Watkins did not show reacquisition by prescription since the railway is still in use and his possession of the disputed area was not exclusive. Because Tommy Watkins died during the pendency of the litigation, the trial court subsequently ordered that Brian Watkins, as executor, be substituted as defendant, and he brings this appeal. Watkins timely demanded a jury trial pursuant to OCGA § 23-3-66 before the special master heard this case. Paul v. Keene , 272 Ga. 357, 358 529 SE2d 135 2000; Addison v. Reece , 263 Ga. 631, 632 1 436 SE2d 663 1993. He enumerates the denial of that demand as error. Therefore, “the question for decision is whether the evidence raised a genuine issue of material fact.” Paul v. Keene , supra at 358.
Although both the Railroad and Watkins attempted to trace their titles back to Alvan Dean in the 1800′s, the Railroad admitted that there is a gap in its chain of title. The farthest back the Railroad can trace title without a gap is the 1874 deed, which was executed by William McFarland. Although Watkins’ chain of title showed a conveyance from Dean’s executor, the Railroad failed to prove that McFarland had any family or representative connection with Dean or his executor. See Smith v. Ga. Kaolin Co. , 269 Ga. 475, 477 2 498 SE2d 266 1998; Mathews v. Logan , 242 Ga. 69, 70 247 SE2d 865 1978. There was no evidence to connect McFarland to the alleged common grantor. Foster v. Adcock , 207 Ga. 201, 204 2 60 SE2d 334 1950. Thus, although Watkins’ chain of title went back to the original grant from the State in 1837, the Railroad’s chain of title went no farther back than 1874. Holliday v. Guill , 196 Ga. 723, 727 1 27 SE2d 398 1943. ” ‘The mere fact that both parties claim under a common grantor does not dispense with necessity to show that the plaintiff has acquired title or an interest from the common grantor.’ Cit.” Holliday v. Guill , supra. Therefore, even if the 1874 deed had been recorded or Watkins was otherwise on notice of its existence, the Railroad failed to show that it has superior record title to the disputed property.
