Puryear v. Clements

• Decision Date: 31 July 1874
• Citation: 53 Ga. 232
• Parties: John Puryear, plaintiff in error. v. A. C. Clements et al., defendants in error.
• Court: Georgia Supreme Court

53 Ga. 232

John Puryear, plaintiff in error. v. A. C. Clements et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.)

Roads and bridges. Prescription. Ways. Before Judge Underwood. Walker Superior Court. February Term, 1874.

For the facts of this case, see the decision.

Dabney & Fouche, for plaintiff in error.

A. B. Culberson, for defendant. Warnfr, Chief Justice.

This case came before the court below on a certiorari from the decision of the commissioners of roads and revenue for the county of Walker. The court, after hearing the certiorari and the answer of the commissioners, dismissed it, and the plaintiff excepted. It appears from the record that in the year 1854, Puryear, the plaintiff in certiorari, had a private way established by an order of court for his individual use and benefit, partly on his own land and on the land of other persons; that the damages were regularly assessed for the injury done to the land of the other persons by the establishment of the private way, and paid for by him. Afterwards, Clements and Rosser, as the evidence shows, used the defendant\'s private way for more than seven years. It also appears, from the evidence in the record, that Puryear had recently put two gates across said private way, and had recently removed a causeway across a ditch, which he had previously put there for his own use, both of which were on his own land. It also appears from the evidence in the record, that one end of the causeway had fallen down so as to render it unsafe and dangerous to cross on it, and that Puryear had removed it to prevent injury to his stock and to persons crossing it, but had not prevented any one from passing around the ditch and causeway through his field, but had told Rosser and Clements when they passed along there to be certain and keep the old road. The commissioners ordered Puryear to remove the gates across the road and restore the causeway within forty-eight hours, and in default thereof, that the sheriff be ordered to do so.

1. The jurisdiction of the commissioners of Walker county over the subject matter was conferred by a special act of the general assembly. That the private way was originally established at the instance of Puryear for his own use and benefit, and paid for by him, there can be no doubt, and the question is, whether Rosser and Clements have the right to use thatprivate way, as against the rights of Puryear. They claim *the right to do so by prescription, on the ground that they have used it for more than seven years. The 3235th section of the Code declares that the right of private way over another\'s land may arise from express grant, or from prescription, by seven years uninterrupted use through improved lands, or twenty years use over wild lands. The 737th section of the Code 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...