Dodson v. Evans

• Decision Date: 15 April 1921
• Docket Number: 2186.
• Citation: 107 S.E. 59,151 Ga. 435
• Parties: DODSON ET AL. v. EVANS.
• Court: Georgia Supreme Court

107 S.E. 59

151 Ga. 435

DODSON ET AL. v. EVANS.

No. 2186.

Supreme Court of Georgia

April 15, 1921

Syllabus by the Court.

Where a private way has been in continuous and uninterrupted use for 7 years or more, it shall not be lawful for any one to interfere with such way; and parties owning property along the way, or otherwise interested in having the same kept open for use, can maintain a petition in equity for injunction to prevent the obstruction of the way or other interference with its use.

The evidence upon a material issue in the case--that is, whether the road alleged to have been a private way and in continuous and uninterrupted use for more than 7 years had been kept in repair--was conflicting, and the discretion of the trial judge in disposing of that issue will not be interfered with.

Error from Superior Court, Clayton County; John B. Hutcheson Judge.

Suit by G. C. Dodson and others against Charlie Evans. Judgment for defendant, and plaintiffs bring error. Affirmed.

Chas F. Wells and R. B. Blackburn, both of Atlanta, for plaintiffs in error.

W. M Wright, of Jonesboro, for defendant in error.

BECK P.J.

This was an equitable petition filed by G. C. Dodson and others against Charlie Evans. Petitioners sought relief by injunction, alleging that a certain private way, about 12 feet in width, along which and on which the property of petitioners fronted, had been obstructed by the defendant by plowing across it, and that further obstruction was imminent. Petitioners alleged that the private way referred to had been in continuous use as a means of ingress and egress to and from their property for more than 7 years. The defendant filed an answer denying the material allegations of the petition. When the interlocutory hearing was had at chambers both sides submitted evidence by affidavits, and after hearing the evidence the court refused the injunction, and the petitioners excepted.

1. We do not agree with the defendant in his contention that petitioners had such a plain remedy at law, under the statute embodied in section 825 of the Civil Code, that injunction should have been refused upon this ground. The section referred to declares that in the event the owner or owners of land over which such private way may pass, or any other person, shall obstruct or otherwise render the way unfit for use, the party injured by such obstruction may petition the ordinary of the county where the way has been used to remove the obstruction; and thereupon the ordinary, after notice etc., shall hear evidence and in case it shall appear that the private way has been in continuous, uninterrupted use for 7 years or more and no steps had been taken to prevent the enjoyment of the same, the ordinary shall grant an order directing the party obstructing the private way to remove the obstructions; and in case the party fails to comply with the order, the ordinary is required to issue a warrant directed to the sheriff, commanding him to remove the obstructions. This section undoubtedly gives a plain legal remedy for removing obstructions from a private way. And section 4797 declares that ordinaries shall have at least concurrent jurisdiction with other tribunals over the question of the...