Bowen v. Lewis
| Decision Date | 11 October 1946 |
| Docket Number | 15579. |
| Citation | 40 S.E.2d 80,201 Ga. 487 |
| Parties | BOWEN v. LEWIS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The provision of the act of the General Assembly creating a Board of County Commissioners for White County, which confers upon them jurisdiction over the removal of obstructions from private ways (Ga.L.1933, p. 762, sec. 11, par. 3), is not unconstitutional as being in violation of art. 1, sec. 4 par. 1 of the Constitution (Code Ann.Supp. § 2-401).
2. The applicant for removal of obstructions from an alleged prescriptive private way over the land of another failed to establish the essential requirements to sustain such an application, that is, that he had been in the uninterrupted use of a permanent private way over the land, not exceeding fifteen feet in width, for seven years, and had kept it open and in repair.
The exception here is to a judgment, denying and overruling the petition for certiorari of the plaintiff in error, by the judge of the superior court, which petition complained of an order by the Board of Commissioners of Roads and Revenues of White County requiring the petitioner to remove certain obstructions from an alleged prescriptive private way over her lands.
The case originated by petition of Ralph Lewis, filed with the Clerk of the Board of Commissioners of Roads and Revenues of White County, which alleged: The defendant, Miss Neela Bowen (new plaintiff in error), is the owner of described lands. The plaintiff (now defendant in error) and others had been in the continued and uninterrupted use of a permanent private way over lands of the defendant, not exceeding 15 feet in width. No legal steps have been taken to prevent the use of the private way, which use has continued for more than 7 years (40 or 50 years). The plaintiff and others have kept the private way in repair. The defendant has obstructed the private way by cutting trees, or having them cut, across the way, by nailing up boards, and putting brush in such way. The plaintiff prayed for an order of removal of the obstructions as provided by law.
A rule nisi was issued and served. The defendant by demurrer attacked the constitutionality of the provision of the act placing jurisdiction in the county commissioners over the removal of obstructions from private ways, as will be more fully shown in the opinion. In her answer the defendant alleged that if such a way had ever existed, it was merely permissive; was not a way of necessity; and was definitely and completely abandoned by all previous users' failing to travel it or keep it in repair for more than 7 years prior to the present proceedings.
At the hearing before the commissioners, an order was entered requiring the defendant to remove obstructions from the alleged private way. A writ of certiorari was sanctioned, and the judgment of the commissioners was set aside and a new hearing ordered. Thereafter the plaintiff amended his original petition, better describing the location of the alleged private way, and further alleging that all of the land on which such way was located had been owned by H. H Bowen during his lifetime, and that he had conveyed a part of the lands to his daughter, Jane McGee, and her children, and another part to the defendant. It was alleged that the lands conveyed to Jane McGee were later conveyed to named parties who, themselves and by their tenants, had used such private way until the lands were conveyed to the plaintiff; and that the plaintiff thereafter had used the private way until it was obstructed.
The defendant amended her original pleadings, renewing her attack on the constitutionality of the act, as hereinbefore set forth. After hearing evidence, the commissioners entered judgment requiring the defendant to remove obstructions placed in the way by her. Her application for certiorari was sanctioned, and upon consideration was denied, such judgment being the one excepted to here.
Weir Gaillard, of Dahlonega, and Wheeler, Robinson & Thurmond, of Gainesville, for plaintiff in error.
C. H. Edwards and A. H. Henderson, both of Cleveland, for defendant in error.
HEAD, Justice (after stating the foregoing facts).
1. The plaintiff in error attacked that part of the act creating the County Board of Commissioners of Roads and Revenues for White County (Ga.L.1933, p. 762, sec. 11, par. 3), vesting in them jurisdiction in the opening of private ways and removing obstructions therefrom, as being unconstitutional, null, and void, in that there is a general law (Code, § 83-119) under which the ordinaries of this State have judisdiction over the removal of obstructions from private ways, and that the act conferring such jurisdiction on the Board of Commissioners of White County is a special law, in violation of art. 1, sec. 4, par. 1 of the Constitutions of 1877 and 1945, Code Ann.Supp. § 2-401. If the contentions of the plaintiff in error are sound, the judgment of the Board of Commissioners of Roads and Revenues of White County ordering her to remove obstructions from an alleged private way, and the judgment of the superior court affirming such order on certiorari, would be void and of no effect, since the commissioners would be without authority to render such judgment in the first instance.
The Code, § 83-119, is a general law. There is no general law in this State regulating the creation of county commissioners and fixing their jurisdiction, powers, and duties, but all acts creating county commissioners for the various counties of this State are special laws. The Constitution of 1945, art. 1, sec. 4, par. 1, Code Ann.Supp. § 2-401, provides: 'Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law.' The existing general law (§ 83-119) was enacted in 1872, many years prior to the act creating the Board of County Commissioners for White County.
Without more, the plaintiff's contention would appear to be well taken. However, the Constitution of 1945, art. 6, sec. 17, par. 1, Code, Ann.Supp. § 2-5201, provides: 'The General Assembly shall have power to provide for the creation of county commissioners in such counties as may require them, and to define their duties.' See art. 6, sec. 19, par. 1 of the Constitution of 1877 . The Constitution of 1945, art. 11, sec. 1, par. 6, Code Ann.Supp. § 2-7806, provides in part: 'Whatever tribunal, or officers, may be created by the General Assembly for the transaction of county matters, shall be iniform throughout the State, and of the same name, jurisdiction, and remedies, except that the General Assembly may provide for Commissioners of Roads and Revenues in any county.' See art. 11, sec. 3, par. 1, Constitution of 1877. The provisions of the Constitution above quoted should, we think, be construed together, and so construed, there is no limitation or restriction upon the General Assembly in the creation of such commissioners by special act.
In Rhodes v. Jernigan, 155 Ga. 523, 528, 117 S.E. 432, 434, it was held: See also Bradford v. Hammond, 179 Ga. 40, 46, 175 S.E. 18; Robitzsch v. State, 189 Ga. 637, 638, 7 S.E.2d 387; Moore v. Whaley, 189 Ga. 647, 649, 7 S.E.2d 394. The cases above cited were based on the Constitution of 1877. As heretofore shown, the provisions of the Constitutions of 1877 and 1945 on the question here involved are substantially the same, and the decisions cited are, therefore, authority for the rulings here made.
The Code, § 23-701--providing, 'The ordinary, when sitting for county purposes, has original and exclusive jurisdiction over the following subject-matters, to wit: * * * (3) In establishing, altering, or abolishing all roads, bridges, and ferries in conformity to law'--is not controlling here. The ordinary sits for county purposes only in those counties where...
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