Kirkland v. Pitman

• Decision Date: 04 March 1905
• Citation: 50 S.E. 117,122 Ga. 256
• Parties: KIRKLAND. v. PITMAN et al.
• Court: Georgia Supreme Court

122 Ga. 256

50 S.E. 117

KIRKLAND.

v.PITMAN et al.

Supreme Court of Georgia.

March 4, 1905.

PRIVATE WAY—OBSTRUCTION—REPAIR—PRESCRIPTION—ABANDONMENT.

1. Even though 12 months' use will not give a perfect prescriptive title to a private way, the owner of the land through which the road runs cannot obstruct the same without first giving the common users 30 days' written notice of his intention so to do.

2. Those who use a private way must keep the same in repair, and cannot take advantage of their own default by turning out to avoid obstructions which they should have removed.

3. Where a private way of the general width of 15 feet, but with a few wider places, is laid out by the owner of the land, and the same is used for the statutory period, the existence of the wide places will not defeat the rights of the users of the way.

4. The duty to repair continues, but, where prescription to a private way has ripened, title is divested by abandonment, though not by neglect.

5. There was no demurrer that the petition failed to allege that the land was improved, and the evidence showed that the way was not only laid out by the owner, but that in some portions it ran through "fields."

6. The description of the road would not have been sufficient had this been a proceeding to lay out and establish, but it was sufficient to identify an existing way across which an obstruction had been placed.

7. In view of the failure to give the notice of an intention to obstruct, and considering the conflict in the evidence, the court did not err in refusing to sustain the certiorari to the judgment of the ordinary requiring the obstructions to be removed.

(Syllabus by the Court.)

Error from Superior Court, Camden County; T. A. Parker, Judge.

Proceedings by J. G. Pitman and others against J. J. Kirkland to compel the removal of obstructions from a private way. Judgment for plaintiffs. Prom an order overruling a certiorari, defendant brings error. Af-, firmed.

Pitman and other residents of Camden county instituted a proceeding before the ordinary to remove obstructions from a pri vate road about one mile long extending from Honey Creek Bluff to Spring Bludd Public Road. The petition alleges that this private way was given to the public by Dr. Alexander Atkinson about 1889, and that it has recently been obstructed by J. J. Kirkland erecting a fence across the private way; that the private way has been in use continuously and uninterruptedly for seven years or more, and no legal steps have been taken to prevent the enjoyment of the same; that the way leads to the only bluff or place of landing conveniently close' to the residences of petitioners; that petitioners and about 200 other residents of the county are injured by the obstruction. The defendant demurred on the grounds that the petition set out no cause of action; that there was a misjoinder of parties; that the way was not sufficiently described; that the petition failed to sufficiently show the injury; and that the references to the public landing were immaterial and irrelevant, and should have been stricken. There was no written order to the effect, but it is recited in the petition for certiorari that the demurrer was orally overruled. The defendant answered, and denied all the allegations in the petition. After hearing evidence, the ordinary found that the private way had been in continuous and uninterrupted use of petitioners for more than seven years, and directed that the obstruction should be removed within forty-eight hours, and that in default of the removal a warrant should issue for the removal as prescribed by law. The defendant thereupon presented his petition for certiorari, setting out the evidence. From the answer to the writ it appears that the evidence before the ordinary was conflicting. That for the petitioners established the existence of the road; that it had been in uninterrupted use since 1895, and for some time prior thereto; that the width of the road is about 15 feet; that it would not average 15 feet wide; that it is just a common road, and the bushes and palmetto have never been cut down for more than 15 feet, to the knowledge of one of the witnesses, who frequently used the same; that it led to a bluff or landing which was most convenient to the petitioners; that there were other landings at a distance therefrom, and that, in order for petitioners to reach Brunswick by going to these, would involve travel of at least 20 miles additional. A part of the private road was in good condition, a part of it bad, and a part of it needed working. The then owner stated in 1895 to a witness who was talking of buying the land that he had given the road in dispute and landing to the public. The public has kept it cleaned out in using it. Another witness for the plaintiffs testified that he helped cut out the road and helped keep it in repair; that the road in dispute has been in use for 10 years; that he had helped work the road several times; and that it was in a prettybad condition, but what made it so was because defendant had hauled heavy timbers over it The damage done by the timber carts was never repaired. Another witness testified that he knew the road had been worked, for he superintended it. The testimony of the defendant tended to show that the road was an old private road kept up by the owner of the place. He did not know when it was first used. He has lived at his present place since 1892. He bought land through which the road runs in 1901. In some places it was as much as 30 or 40 feet wide. It has not been in constant use as long as seven years. There was nothing like constant use of it until after the tidal wave in 1898. He would say it has been used off and on for seven years, but it has not been in constant and uninterrupted use for seven years. The defendant never gave written notice to any one that he was going to close the road up, but posted written notice at the landing and on trees on the road about 00 days before he closed it up. These notices were torn down. The former owner of the land testified that he told the people that as long as he had any right to the property they might use the road. In selling to Kirkland he made no reservation or mention of the road. It...