Johnson v. Sams

• Decision Date: 17 June 1911
• Citation: 71 S.E. 891,136 Ga. 448
• Parties: JOHNSON. v. SAMS.
• Court: Georgia Supreme Court

136 Ga. 448

71 S.E. 891

JOHNSON.

v.SAMS.

Supreme Court of Georgia.

June 17, 1911.

(Syllabus by the Court.)

1. Easements (§ 61^*) — Obstructions — Removal.

The ordinary of Mcintosh county has jurisdiction of a proceeding to remove obstructions from an alleged private way existing by prescription over the lands of another within the limits of the town of Darien. Civil Code 1910, § 825; Duggan v. Cox, 78 Ga. 158, 1 S. E. 428.

[Ed. Note.—For other cases, see Easements, Cent. Dig. §§ 134-137; Dec. Dig. § 61.*] 2. Easements (§ 61*)—Acquisition of Right —Prescription.

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 show, not only that he has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 feet in width, and that it is the same 15 feet originally appropriated, but that he had kept it open and in repair during such period. Collier v. Farr, 81 Ga. 749, 7 S. E. 860, and cases cited; Nashville, etc., Ry. Co. v. Coats, 133 Ga. 820, 66 S. E. 1085.

(a) In the present case there was evidence that the defendant had kept the alleged private way open, and had permitted the applicant for the removal of the obstructions to use it, but there was no evidence tending to show that the applicant had kept it open and made repairs on it; and hence the evidence was insufficient to authorize the ordinary to pass an order requiring the removal of the obstructions. Accordingly the judge of the superior court erred in sustaining, on certiorari, the judgment of the ordinary ordering such removal.

[Ed. Note.—For other cases, see Easements, Cent. Dig. §§ 134-137; Dec. Dig. § 61.*]

Error from Superior Court, Mcintosh County; P. E. Seabrook, Judge.

Petition by Lewis Sams against Mary Johnson for removal of obstructions of private road. From an order for such removal, defendant brings error. Reversed.

Wm. De R. Barclay, for plaintiff in error.

Chas. M. Tyson, for defendant in error.

ATKINSON, J. Judgment reversed. All the Justices concur.

*.For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes