Rogers v. Wilson
| Decision Date | 22 January 1931 |
| Docket Number | 7604. |
| Citation | 156 S.E. 817,171 Ga. 802 |
| Parties | ROGERS v. WILSON. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
Amendment to petition to enjoin interference with private driveway based on express grant, of mutual easement by common grantor alleging prescriptive right to easement, was not objectionable as stating new case.
Petition to enjoin obstruction of joint private driveway stated case founded on express grant of easement.
Petition to enjoin obstruction of driveway founded on express grant of easement, amended to allege prescriptive right, held not dismissable as whole, though prescription was inapplicable.
Obstruction of driveway could not be enjoined because of express grant where driveway did not appear in conveyance to defendant's predecessor nor on plat.
Grantor reserving no interest in driveway over land conveyed, and not shown on plat, could convey no interest therein by deed to adjoining land.
Establishment of private way over another's land requires proof of seven years' uninterrupted use over way not exceeding fifteen feet as originally appropriated but kept open and in repair (Civ. Code 1910, § § 818, 824, 3641).
Evidence failed to show repair of driveway over another's land sufficient to establish right thereover by prescription (Civ Code 1910, § § 818, 824, 3641).
Error from Superior Court, De Kalb County; John B. Hutcheson, Judge.
Action by E. M. Wilson against W. G. Rogers. Judgment for plaintiff, and defendant brings error.
Reversed.
Petition to enjoin obstruction of driveway founded on express grant of easement, amended to allege prescriptive right, held not dismissable as whole, though prescription was inapplicable.
A suit was instituted to enjoin the closing of a driveway seven feet wide, located along the dividing line between two improved city lots, and occupying equal parts of the respective lots. The petition alleged that the plaintiff and defendant derived titles to their respective lots through a common grantor, and that the lots were parts of a named "subdivision"; that the "plan" of the subdivision showed the "joint driveway"; that both the lots were "bought with reference to a certain plat" of the subdivision, which "indicates a common driveway"; that "one-half of the fee to said drive-way is in the plaintiff and the other half in the defendant, each having an easement over that part of the driveway owned by the other"; and that the driveway had been used by plaintiff and defendant and the former owners of the defendant's lot "for the past thirteen years." At the trial it was admitted that each party owned his lot in fee, but no deed or plat or plan of the subdivision was introduced, nor was there other evidence that the deeds or any plat or plan of the alleged subdivision indicated the alleged driveway. The defendant's motion to dismiss the action, on the ground that plaintiff had failed to make out her case, was overruled. The plaintiff then offered an amendment to the petition, alleging that plaintiff "has used said driveway for a period of such time, to wit: more than seven years, as gives her a prescriptive right to the use of said driveway, as a private way, said use having been continuous and uninterrupted during plaintiff's occupancy and ownership of the property." The amendmentwas allowed over the objections that it "introduced a new cause of action, in that it alleged that the plaintiff had acquired a prescriptive right to said alleged joint driveway by reason of seven years' uninterrupted user thereof, and that this was predicated upon a cause of action entirely separate and distinct and antagonistic to that upon which her original petition was based; and more especially in that the plaintiff's petition sought equitable relief on the ground that the common owner of said property had by deed or plat reserved said joint alleyway for the use of both lots." The defendant then moved to dismiss the petition as amended on the grounds "that plaintiff could acquire no right by prescription to a joint driveway alleged to have been reserved by the grantor for the use of plaintiff and defendant as the owners of coterminous lots, and more especially as the interests of said owners in such an alleged driveway were as tenants in common, and one tenant in common could not acquire by prescription a right or title against his cotenant." This motion was overruled. The defendant then introduced evidence.
The evidence in its entirety showed substantially the following: The parties owned their respective lots, each deriving title through the Southerland Realty Company. Dwelling houses were erected on both lots about the same time. One of the lots having a street frontage of 65.2 feet was sold to Ivey, the defendant's grantor, in 1913, who received a bond for title and subsequently a deed. In 1922 Ivey sold to Fielding and gave him a bond for title. Fielding transferred the bond for title to the defendant, who in 1926 obtained his deed. The plaintiff purchased and received a deed to her lot having a street frontage of 51 feet directly from the Southerland Realty Company, in 1915. Ivey moved with his family into the dwelling on his lot in 1913. The house on the adjoining lot remained vacant until the plaintiff purchased and occupied the dwelling in 1915. At the time Ivey entered upon his lot, the driveway in question, being seven feet wide (three and one-half feet on each side of the dividing line) existed in the form of a crude country road. At that time a fence was on each side of the driveway, which remained for an undisclosed time, and Ivey used it as a way for wagons to deliver coal and the like at the back of his house. When the plaintiff purchased, she used the driveway for similar purposes. The driveway was used in the manner indicated by the owners of both lots continuously thereafter for more than thirteen years. The plaintiff testified that, if the way should be closed, "we could not get into our place with cars or wagons." A witness testified: "In rainy weather it [the driveway] was difficult to use, and no one paid any special attention to keeping it up." The defendant testified: "In rainy or wet weather this way was practically impassable." There was no other evidence on the subject of working or keeping the way in repair. None of the deeds or the plan of the subdivision referred to in the deeds was introduced. The judge directed a verdict for the plaintiff. The defendant excepted, assigning error on the several rulings above stated, and to the final judgment as contrary to law and without evidence to support it.
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