Clark v. Anderson

• Decision Date: 31 January 1936
• Docket Number: 24628.
• Citation: 183 S.E. 852,52 Ga.App. 500
• Parties: CLARK v. ANDERSON.
• Court: Georgia Court of Appeals

183 S.E. 852

52 Ga.App. 500

CLARK v. ANDERSON.

No. 24628.

Court of Appeals of Georgia, First Division

January 31, 1936

Syllabus by the Court.

1. "Before an applicant can have obstructions removed from a private way, he must show not only that there has been an uninterrupted use for more than seven years, but that it is not more than fifteen feet wide, that he has kept it open and in repair, and that it is the same fifteen feet originally appropriated." Collier v. Farr, 81 Ga. 749, 7 S.E. 860.

2. The act of 1872 (Code of 1933, §§ 83-112, 83-119), giving the ordinary jurisdiction summarily to try obstructions to private ways, is confined to cases of private ways which arise by prescriptive right acquired by seven years' possession or user. In this case there was evidence to support the ordinary's judgment refusing to order the obstruction removed from the alleged private way, and it was not error to overrule the certiorari.

Error from Superior Court, Cobb County; J. H. Hawkins, Judge.

Suit by Lula Clark against A. L. Anderson. The ordinary denied the petition, and the superior court overruled certiorari, and plaintiff brings error.

Affirmed.

Mozley & Latimer, of Marietta, for plaintiff in error.

J. G Roberts, of Marietta, for defendant in error.

MacINTYRE Judge.

As we construe the petition to the ordinary in this case brought under the Code 1933, §§ 83-112, 83-119, it was sought to have removed obstructions from an alleged private way. The ordinary denied the prayers of the petition. The superior court overruled a certiorari, and the plaintiff excepted.

The act of 1872 (Code of 1933, §§ 83-112, 83-119) giving the ordinary jurisdiction summarily to try obstructions to private ways is confined to cases of private ways which arise by prescriptive right acquired by seven years' possession or user. Therefore the question here is: Did the petitioner have such right by prescription? Brown v. Marshall, 63 Ga. 657, 658; Holloway v. Birdsong, 139 Ga. 316, 77 S.E. 146; Belcher v. Kelly, 143 Ga. 525(4), 85 S.E 696; Porter v. Foster, 146 Ga. 154(4), 90 S.E. 967; Thompson v. Easley, 87 Ga. 320, 13 S.E. 511; Johnson v. Williams, 138 Ga. 853, 76 S.E. 380. "To sustain an application for the removal of obstructions from an alleged private way, the right to which is based upon prescription by seven years' user, it is essential that he [the applicant] show, not only that he has been in the uninterrupted use thereof for seven years or more, that it does not exceed fifteen feet in width, and that it is the same fifteen feet originally appropriated, but that he had kept it open and in repair during such period." Johnson v. Sams, 136 Ga. 448, 71 S.E. 891. The evidence was conflicting, but it was sufficient to authorize the finding by the ordinary that the plaintiff was not entitled to a private way by prescription because the alleged right of way exceeded fifteen feet in width. The court did not err in overruling the certiorari and sustaining the judgment of the ordinary. We decide nothing in regard to what rights for removal of the obstructions the petitioner might have before a court of law or equity. See Salter v Taylor, 55 Ga. 310; ...