Nashville v. Coates

• Decision Date: 18 February 1910
• Court: Georgia Supreme Court
• Parties: NASHVILLE, C. & ST. L. RY. v. COATES.

133 Ga. 820

66 S.E. 1085

NASHVILLE, C. & ST. L. RY.

v.COATES.

Supreme Court of Georgia.

Feb. 18, 1910.

(Syllabus by the Court.)

1. Easements (§ 68^*) — Private Way — Damages for Obstruction.

The court did not err in overruling the demurrers to the plaintiff's petition.

[Ed. Note.—For other cases, see Easements, Dec. Dig. § 68.*]

2. Easements (§ 69*)—Adverse Possession-Obstruction—Evidence.

The verdict against the plaintiff in error was without evidence to support it, and the court below erred in overruling the motion for a new trial.

[Ed. Note.—For other cases, see Easements, Dec. Dig. § 69.*]

Error from Superior Court, Dade County; A. W. Fite, Judge.

Action by Thos. Coates against the Nashville, Chattanooga & St. Louis Railway. Judgment for plaintiff, and defendant brings error. Reversed.

Brown & Spurlock and Payne & Payne, for plaintiff in error.

T. J. Lumpkin and H. P. Lumpkin, for defendant in error.

BECK, J. The defendant in error brought suit against the railway company to recover damages alleged to have been sustained in consequence of the. wrongful and tortious closing up of a private way which led across the railroad company's right of way. It appears from the petition and the amendments thereto that the plaintiff in his pleadings based his cause of action upon the fact that the road alleged to have been wrongfully closed up was a private way by prescription, having been used continuously for over seven years, and it was also alleged that the plaintiff had used the way for more than one year. The jury returned a verdict for the plaintiff. The defendant filed a motion for a new trial, and excepted to the court's judgment overruling the motion.

An examination of the evidence shows that the plaintiff failed entirely to establish the fact that the way which the defendant company had obstructed was a prescriptive right of way. In the case of Short v. Walton, 61 Ga. 28, it was decided that: "To acquire a prescriptive right to a private way over land, it is necessary to show the uninterrupted use of a permanent way, not over fifteen feet wide, kept open and in repair for seven years. It is not sufficient to show that those claiming the prescription have been accustomed for more than seven years to passover the land, changing the way as they saw fit, to avoid obstructions or for convenience." And in the case of Aaron v. Gunnels, 68 Ga. 528, this ruling was reaffirmed, the court saying: "So far from the evidence showing that these parties ever worked this [road] or kept it in repair, it shows that it has never been worked by anybody, and that nothing has ever been done to it except the pulling out of the way any bush or other thing which by chance happened to fall into it by the passers thereon." And it was said in the case of Nott v. Tinley, 69 Ga. 766, that, "where a private way is claimed by prescription, the parties setting up such claim must bring themselves strictly within the requirements of the law." In the case of Wool-bright v. Cureton, 76 Ga. 107, the court said: "Where there was no evidence to show that the way was not over fifteen feet in width, and that it had been kept open and in repair for seven years, the judgment of the ordinary ordering removal of the obstructions therefrom was properly reversed on certiorari, and a new trial granted." These rulings were affirmed in the case of Collier v. Parr, 81 Ga. 749, 7 S. E. 860. It seems to be clearly established that one who complains of the closing up or obstruction of an alleged prescriptive way must show an uninterrupted use for more than seven years, and he must also show that the way is not more than fifteen feet wide, and that he has kept it open and in repair, and that it is the same...