Nugent v. Watkins

• Decision Date: 08 October 1907
• Citation: 58 S.E. 888,129 Ga. 382
• Parties: NUGENT v. WATKINS.
• Court: Georgia Supreme Court

58 S.E. 888

129 Ga. 382

NUGENT v. WATKINS.

Supreme Court of Georgia

October 8, 1907

Syllabus by the Court.

The death of the grantor of one of the parties to a litigation in regard to an alleged private way does not render the other party or his agent entirely incompetent to testify as a witness, but only incompetent to testify to transactions or communications with the deceased. Independent physical facts which do not involve any such communication or transaction are not within the rule.

Evidence which tends to establish the issue is admissible, even if not of itself sufficient for that purpose.

Under a proceeding to cause obstructions to be removed from a private way, based on the act of 1872 (Pol. Code 1895, §§ 678, 679) and alleging solely that the way was one established by prescription for more than 7 years, the applicant is not entitled to a judgment by proof that the road has been in use as a private way for more than a year, and that the owner has closed it without giving to the common users 30 days' notice in writing, in order that they might take legal steps to have it made permanent, as required by section 673 of the Political Code of 1895.

[Ed Note.-For cases in point, see Cent. Dig. vol. 17, Easements, § 93.]

An assignment of error, "that said ordinary erred in rendering said judgment of March 15, 1906, denying your petitioner the relief prayed by her," is too general to raise any specific ground of error in rendering the judgment in question, in addition to those pointed out in special assignments of error.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2997.]

There was no error in overruling the certiorari.

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

Action by Eliza Nugent against Sarah E. Watkins. Judgment for defendant, and plaintiff brings error. Affirmed.

Eliza Nugent filed with the ordinary of Richmond county her petition against Sarah E. Watkins, seeking to have obstructions removed from an alleged private way, under the provisions of section 679, Pol. Code of 1895. She alleged that the way had existed, and had been worked and kept open and in repair by her and her grantor, and was in their constant and uninterrupted use, for more than seven years prior to its obstruction. The ordinary, under the evidence, rendered judgment for the defendant. On certiorari his judgment was sustained, and the plaintiff excepted.

Salem Dutcher, for plaintiff in error.

Austin Branch and C. H. and R. S. Cohen, for defendant in error.

LUMPKIN J.

This case is here for the second time. The ordinary dismissed the petition on demurrer. The judge of the superior court sustained his decision. On exception this court reversed the judgment. Nugent v. Watkins, 124 Ga. 150, 52 S.E. 158. On the trial, under the evidence, the ordinary found for the defendant. The case was carried to the superior court by writ of certiorari, and from the judgment of that court sustaining the decision of the ordinary it was brought by writ of error to this court.

The assignments of error may be grouped under three heads: (1) Overruling objections to the competency of the defendant and her employé as witnesses, and allowing them to testify as to obstructions placed in the alleged way at different times, in order to show that there had not been seven years' continuous and uninterrupted use of it. Objection was made to this on the ground that petitioner relied on use both by herself and her grantor, Watkins, and that what occurred during his lifetime amounted to transactions with him. (2) Allowing several witnesses to testify that one end of the lane or way had been obstructed for a number of years; that the obstruction consisted of a post put up in the lane and some signs containing the words "Private Lands"-one witness testifying that the post stayed there for a time, and then some person moved it or took it away, and another that it had remained there. They stated that this end of the alleged way was obstructed before the death of Watkins. The evidence was objected to on the ground of its legal insufficiency to change the character of the way as an established dividing line, or to break the legal continuity of its use. (3) Because "said ordinary erred in rendering said judgment of March 15, 1906, denying your petitioner the relief by her prayed."

1. The death of the grantor of one of the litigants did not render the other and her agent incompetent to testify at all as witnesses, but prevented them from testifying to transactions or communications with the deceased grantor. Murphy v. Bush, 122 Ga. 715, 50 S.E. 1004. The fact that she caused obstructions to be placed in the alleged way at different times, and closed the lower portion of it, so as to prevent wagons from going through, and the physical condition of the alleged way, did not constitute communications or transactions with the deceased grantor. The evidence did not show that there was any discussion or agreement in regard to this matter, or that there was any communication or transaction between the defendant and the deceased grantor in connection with it. So far as shown it was merely the independent physical act of the defendant, with which he was in no way connected by communication or action; and it did not even appear that he was present. What has just been said applies even more clearly to the evidence of the defendant's employé, who stated that he had put posts in the lane to block it up three times during the preceding 14 years, and that they would stand for a year or two, except the last, which still remained. Evidently this could not be called a communication or transaction between the employé and Watkins. Puryear v. Foster, 91 Ga. 444, 18 S.E. 316; Trimble v. Mims, 92 Ga. 103, 18 S.E. 362; Gomez v. Johnson, 106 Ga. 513 (1), 32 S.E. 600; Parker v. Salmons, 113 Ga. 1167, 39 S.E. 475 (which goes quite far); Horton, Adm'r, v. Smith, 115 Ga. 66, 41 S.E. 253 (also a strong case arising prior to the act of 1900). In Mayfield v. Savannah R. Co., 87 Ga. 374, 13 S.E. 459, it was sought to show by the plaintiff, an employé of the railroad company, that while engaged in the discharge of his duties, just as he had put one foot upon the rim of the pilot of the engine, the engineer put on steam and thus caused the engine to jerk, resulting in an injury to the plaintiff. This was a "transaction" in which both the plaintiff and the engineer were engaged, and the plaintiff was incompetent to testify in regard to it after the death of the engineer. The ruling is discussed in Atlanta, K. & N. Ry. Co. v. Roberts, 116 Ga. 509, 42 S.E. 753. There is nothing in Hendrick v. Daniel, 119 Ga. 358 (1), 46 S.E. 438, or in Parker v. Ballard, 123 Ga. 443 (1), 51 S.E. 465,

which conflicts with the ruling now made. In her testimony the defendant did make use of the expression, "and Wilson Watkins never objected." Had attention been specially called to this, it should, and doubtless would, have been rejected. But the objection covered a considerable amount of evidence, in which these few words occurred. We do not think this requires a reversal.

2, 3. The petitioner alleged that the private way had been opened and in use...