Johnson v. Williams

• Decision Date: 15 November 1912
• Citation: 76 S.E. 380,138 Ga. 853
• Parties: JOHNSON v. WILLIAMS et al.
• Court: Georgia Supreme Court

76 S.E. 380

138 Ga. 853

JOHNSON v. WILLIAMS et al.

Supreme Court of Georgia

November 15, 1912

Syllabus by the Court.

In a proceeding to remove an obstruction from a private way over the land of another, it is not necessary to describe the way in so far as it extends over the land of others. It is sufficient if the description of the way through the land where the obstruction is alleged to have been placed is accurately defined.

The summary remedy for the removal of an obstruction from a private way as provided in Civ. Code 1910, § 825, is applicable alike to prescriptive ways as described in Civ Code 1910, § 824, and to private ways used for as much as one year, where the landowner fails to give 30 days' notice (Civ. Code 1910, § 819).

(a) 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 the obstruction is ordered to be removed, 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 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.

Error from Superior Court, Bulloch County; R. T. Rawlings, Judge.

Action by W. W. Williams and others against J. L. Johnson. Judgment for plaintiffs, and defendant brings error. Affirmed.

J. J E. Anderson, of Statesboro, for plaintiff in error.

Fred T Lanier, of Statesboro, for defendants in error.

EVANS P.J.

W. W Williams and others filed a petition against J. L. Johnson, before the ordinary of Bulloch county, praying for the removal of an obstruction from a private way, which was alleged to have been in the constant and uninterrupted use of the applicants for a period of seven years. A demurrer was interposed to the sufficiency of the petition as stating a cause of action. An amendment to the petition was allowed over objection. The court overruled the demurrer, and adjudged that the defendant remove the obstruction, on the ground that he failed to give 30 days' written notice of his intention to close the private way; the court finding that applicants had no prescriptive right of private way over the defendant's land. The defendant sued out a writ of certiorari, which was overruled, and he excepted.

1. One ground of the demurrer is aimed at the sufficiency of the description of the private way, which is described only to the extent it passes over the land of the owner, who is alleged to have placed an obstruction in it. The contention of the demurrant is that the private way should be accurately described between its termini, beyond the limits of the land from which the obstruction is to be removed. We think not. The issue is whether the claimants have a right of private way over the land of the owner who obstructs it. It is beside the question to inquire into the claimants' right of way over adjoining lands, the owners of which do not object to applicants traveling over their land.

2. In the amendment the applicants alleged that they had used the private road, which was obstructed, for more than a year, and that it was closed without giving the users 30 days' notice in writing, as required by the statute. Inasmuch as in the original petition the applicants alleged that they had a prescriptive right to use the road, it is contended that the amendment introduced an entirely new cause of action. Civil Code, § 819, declares that, when a road has been used as a private way for as much as one year, an owner of land ever which it passes cannot close it up without first giving the common users of the way 30 days' written notice, that they may take steps to make it permanent. Section 824 declares that whenever a private way has been in constant and uninterrupted use for seven years or more, and no legal steps have been taken to abolish the same, it shall not be lawful for any one to interfere...