Hall v. Browning
| Citation | 24 S.E.2d 392 |
| Decision Date | 11 February 1943 |
| Docket Number | No. 14407.,14407. |
| Parties | HALL et al. v. BROWNING. |
| Court | Supreme Court of Georgia |
HALL et al.
v.
BROWNING.
No. 14407.
Supreme Court of Georgia.
Feb. 11, 1943.
[24 S.E.2d 393]
[COPYRIGHT MATERIAL OMITTED]
[24 S.E.2d 394]1. Seven years of uninterrupted use of a private road through improved land of another will give to the users a prescriptive private way, if the road and the use conform to the requirements of the Code, § 83-102 et seq.
One year of use of such a private road will give to the users an inchoate right, such as will entitle them, under § 83-114,
[24 S.E.2d 395]to thirty days written notice from the owner of his intention to close the road, in order to give them opportunity to bring proceedings before the ordinary, under § 83-101 et seq., to make the road permanent.
2. The Code, § 83-119, provides to users of a private way a procedure before the ordinary to remove existing obstructions from such a way; and this statutory summary remedy is available both for prescriptive ways and for those in use only for a year, where as to the latter the owner has failed to give the required thirty days written notice before creating the obstruction.
3. If the obstruction of a private way has been completed, the statutory remedy before the ordinary will afford to the users a full and adequate remedy at law by removal of the obstruction, so that in such a case a petition for injunction will not lie. But if the obstruction is a threatened or additional one and by acts and conduct is imminent, a petition will lie, since the statutory remedy does not cover such a situation.
4. Under the preceding rules, and against general demurrer, this petition by users of an alleged private way against the owner of the land sufficiently alleged the existence of both a prescriptive way and an inchoate way, by one year of use without thirty days written notice of the threatened closing by the owner, made imminent by acts and conduct; and stated a cause of action for a restraining order and injunction, since that relief was sought, not as to a complete obstruction, but as to threatened and imminent future obstructions.
5. The obstruction of a prescriptive private way constitutes a tort. Accordingly, in the absence of a special demurrer on the ground of multifariousness, duplicity, or misjoinder of actions, the joining in one count, with the equitable averments and prayer for an injunction, of a general claim for damages in tort, for the alleged previous, but not continuing, tortious acts, which had interfered with the use of the alleged prescriptive way, and for the firing of a pitol by the defendant into the plaintiffs' garden as a deterrent intended to intimidate them, did not render the petition subject to general demurrer.
6. A portion of paragraph 10 of the petition, containing irrelevant matter, was subject to that ground of special demurrer. But the petition being good against the general demurrer and all other special grounds, and no opportunity having been given to amend before the dismissal of the action on all grounds of demurrer, the judgment of dismissal must be reversed, and opportunity should be given to correct by amendment the particular defect.
Error from Superior Court, Laurens County; R. Earl Camp, Judge.
Suit by J. M. Hall and another against U. L. Browning to enjoin closing of a private way through defendant's land and for damages. To review an adverse judgment, plaintiffs bring error.
Reversed and remanded.
Wm. B. Kent, of Alamo, for plaintiffs in error.
R. I. Stephens, of Dublin, for defendant
JENKINS, Justice.
1. "The right of private way over another's land may arise by prescription from seven years' uninterrupted use through improved lands * * *; but in order to set up such prescriptive right of way, it is essential that the prescriber 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 number of feet originally appropriated, but that he has kept it open and in repair during such period." Rogers v. Wilson, 171 Ga. 802 (4), 156 S.E. 817, 819, and cit.; Elliott v. Adams, 173 Ga. 312(4), 322, 160 S.E. 336; Nashville, etc., Ry. Co. v. Coats, 133 Ga. 820, 822, 66 S.E. 1085; Collier v. Farr, 81 Ga. 749, 751, 7 S.E. 860, and cit.; Johnson v. Sams, 136 Ga. 448(2), 71 S.E. 891; Scarboro v. Edenfield, 58 Ga.App. 619, 199 S.E. 325; Clark v. Anderson, 52 Ga.App. 500, 501, 183 S.E. 852; Code, §§ 83-102, 83-112.
(a) When a road has been used as a private way for as much as one year, an owner of land over which it passes may not close it up without first giving the common users of the way 30 days notice in writing, that they may take steps to have it made permanent by proceeding before the ordinary, Code, § 83-114, in the manner provided by § 83-101 et seq. The Code thus "recognizes that those who travel over the route may acquire an inchoate right before they secure a perfect
[24 S.E.2d 396]title. So that even incomplete and partial prescription will prevent the owner from obstructing a private way which has been used for 12 months, unless he first gives 30 days' notice in writing of his intention to the common users." Kirkland v. Pitman, 122 Ga. 256, 259, 50 S.E. 117, 118.
A. "In the event the owner or owners of land over which a private way may pass, or any other person, shall obstruct, close up, or otherwise render the private way unfit for use, the party or parties injured by such obstructions or other interference may petition the ordin-ary * * * to remove such obstructions;" and the ordinary, under the statutory procedure and after hearing evidence, may grant an order directing the offending parties "to remove said obstructions or other interference within 48 hours, and in the event of failure so to remove said obstructions, the ordinary shall issue a warrant directed to the sheriff, commanding him forthwith to remove said obstructions." Code, § 83-119. This "summary remedy * * * is applicable alike to prescriptive ways as described in the * * * Code [§ 83-112], and to private ways used for as much as one year where the landowner fails to give 30 days notice, " as provided by § 83-114. But while an applicant for such an order of removal "may base his right to relief upon both code sections, " yet "in the event [he] prevails and the obstruction is ordered to be removed, the judgment of the ordinary should show upon which claim of the applicant it rests." Johnson v. Williams, 138 Ga. 853(2, a), 854, 76 S.E. 380, and cit.; Ford v. Waters, 27 Ga.App. 83, 107 S.E. 351; Barnes v. Holcomb, 35 Ga. App. 713, 716, 134 S.E. 628, and cit. Thus, the applicant's pleadings should not confuse the two claims; and if there is a proper demurrer raising the question, he may be required to indicate on which claim he relies.
3. If an obstruction of a private way has been completed, the statutory remedy by petition to the ordinary for a removal of the obstruction would afford a full, adequate and complete remedy at law --whether those deprived of the use rely on a full prescriptive right, or rely only on an inchoate one-year right without the thirty days written notice. It is also true that an injunction merely against the maintenance of such a completed obstruction, being mandatory in character, would not be permissible. Code, § 55-110. Accordingly, in that character of case, where the averments and prayers relate solely to an injunction against a finished existing obstruction, an equitable petition will not lie. Campbell v. Deal, 185 Ga. 474, 478, 195 S.E. 432, and cit.; Simmons v. Lindsay, 144 Ga. 845(2), 848, 88 S.E. 199; Smith v. Parlier, 152 Ga. 100(3), 108 S.E. 515; Sims v. Boyd, 177 Ga. 465(2), 170 S.E. 375. But, as was recognized in the Campbell case, if the equitable petition alleges a threatened additional obstruction as an imminent situation, which it seeks to enjoin, the petition would lie, since the statutory remedy, available only for removing existing obstructions, would not cover the situation, and since the injunction would not be mandatory in character. Spires v. Wright, 147 Ga. 633, 95 S.E. 232; Nevels v. Golden, 147 Ga. 34, 92 S.E. 521; Dod-son v. Evans, 151 Ga. 435, 436, 107 S.E. 59; Sullivan v. Farlow, 189 Ga. 186, 188 (2), 5 N.E.2d 641; Hogan v. Cowart, 182 Ga. 145(4), 184 S.E. 884. Thus, where an injunction was granted, not only against a fence already completed across a private way, but also against the ploughing up of the way and its obstruction otherwise, as the owners were alleged to be "preparing to" do, the...
To continue reading
Request your trial