Collier v. Farr

• Decision Date: 22 October 1888
• Citation: 7 S.E. 860,81 Ga. 749
• Parties: COLLIER v. FARR.
• Court: Georgia Supreme Court

7 S.E. 860

81 Ga. 749

COLLIER v. FARR.

Supreme Court of Georgia

October 22, 1888

Error from superior court, Fulton county; MARSHALL J. CLARKE Judge.

Application by Farr to the ordinary of Fulton county to compel Collier to remove obstructions placed by him in two private roads used by Farr. The ordinary having granted such an order, Collier obtained a writ of certiorari from the superior court, where the order was affirmed. From the judgment of the superior court Collier brings error.

John Collier and T. P. Westmoreland, for plaintiff in error.

J. A Gray, for defendant in error.

SIMMONS J.

It seems, from the record in this case, that there was a private road leading from Farr's house to the Howell's Mill road, and another private road leading from the Howell's Mill road to the Peachtree road. Collier had placed obstructions in both roads. Farr applied to the ordinary for an order to compel Collier to remove the obstructions. It appeared from the evidence--taken before the ordinary--that both of these roads had been used uninterruptedly by Farr for more than seven years. It does not appear from the evidence that the road leading from Farr's house to the Howell's Mill road had been kept open and in repair by Farr, or that he had ever done any work thereon. It appears that the road leading from the Howell's Mill road to the Peachtree road had had some work done on it by him, but that two trees had fallen across it, -- one of which had been there from eight to ten years, and the other some two years before the trial before the ordinary. Instead of removing the trees from the road, and thereby clearing it of the obstructions, Farr made new roads around the trees. Under this evidence the ordinary passed an order requiring Collier to move the obstructions. Collier sued out a writ of certiorari to the superior court, and that court upon hearing the certiorari and the answer of the ordinary, affirmed the judgment of the ordinary, and dismissed the certiorari. Collier sued out his bill of exceptions to this court, and complained of said ruling as erroneous.

We think the court below erred in affirming the ruling of the ordinary. Code, § 721, in defining what a private way is says it must not exceed 15 feet in width, and must be kept open and in repair by the person on whose application it is established, and may be as much less as the applicant may choose. This court, in construing this section, has frequently held that the keeping it open and in repair must always be shown before an applicant will be entitled to an order to remove obstructions therefrom. In the case of Short v. Walton, 61 Ga. 28, this court held that "to acquire a prescription right to a private way over land, it is necessary to show the uninterrupted use of a permanent way, not over fifteen feet wide, kept open and in repair for seven years. It is not sufficient to show that those claiming the prescription have been accustomed for more than seven years to pass over the land, changing the way as they saw fit, to avoid obstructions or for convenience." This ruling was reaffirmed in the case of Aaron v. Gunnels, 68 Ga. 528, in which case the court say: "So far from the evidence showing that these parties ever worked this [road] or kept it in repair, it shows that it has never been worked by anybody, and that...