Ford v. Waters

• Decision Date: 14 May 1921
• Docket Number: 12011.
• Citation: 107 S.E. 351,27 Ga.App. 83
• Parties: FORD ET AL. v. WATERS ET AL.
• Court: Georgia Court of Appeals

107 S.E. 351

27 Ga.App. 83

FORD ET AL. v. WATERS ET AL.

No. 12011.

Court of Appeals of Georgia, Second Division

May 14, 1921

Error from Superior Court, Worth County; R. Eve, Judge.

Suit by T. J. Waters and others against W. S. Ford and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

T. R Perry, of Sylvester, for plaintiffs in error.

Passmore & Forehand, of Sylvester, for defendants in error.

JENKINS P.J.

1. The summary remedy by petition to the ordinary for the removal of an obstruction from a private way as provided in Civil Code (1910) § 825, is applicable alike to prescriptive ways as described in section 824, and to private ways used for as much as one year where the landowner fails to give 30 days' notice (section 819). An applicant for the removal of an obstruction from a private way may base his right to relief upon both Code sections; but in the event the applicant prevails and removal of the obstruction is ordered the judgment of the ordinary should show upon which claim of the applicant it rests, whether upon a finding that the applicant has a prescriptive right to the way, acquired by seven or more years' user, or upon a finding that the applicant had used the road for as much as one year, and the landowner had closed it without giving 30 days' written notice of his intention so to do. Johnson v Williams, 138 Ga. 853 (2 a), 76 S.E. 380.

Thus in order to entitle one who has used and maintained a road as a private way for as much as one year to the notice prescribed by section 819 of the Code, it is not necessary that the way so used and maintained should have been actually established as a private way under the statutory provisions of the Code (sections 807, 809, et seq.); but such a use for only that limited period is sufficient to give to the common user such an inchoate right as will entitle him to the notice mentioned before the landowner will be permitted to close the way. Johnson v. Williams, 138 Ga. 853, 855, 76 S.E. 380; Powell v. Amoss, 85 Ga. 273, 275, 11 S.E. 598; Kirkland v. Pitman, 122 Ga. 256 (1), 259, 50 S.E. 117.

2. This case, under its facts, is controlled by Johnson v. Williams supra. As the earlier decisions in the case of Brown v. Marshall, 63 Ga. 658, and others were fully considered in the Johnson Case, and as the Johnson Case in no wise conflicts with the later cases of Holloway v. Birdsong, 139 Ga. 316, 77 S.E. 146, Rodgers v. Stroud...