Scarboro v. Edenfield

• Decision Date: 01 October 1938
• Docket Number: 26960.
• Parties: SCARBORO v. EDENFIELD et al.
• Court: Georgia Court of Appeals

199 S.E. 325

58 Ga.App. 619

SCARBORO v. EDENFIELD et al.

No. 26960.

Court of Appeals of Georgia, Second Division

October 1, 1938

Rehearing Denied Nov. 3, 1938.

Syllabus by Editorial Staff.

A person seeking removal of obstruction from a private way on the ground that he has acquired a prescriptive right to use the way must show that he has been in the uninterrupted use of the way for seven years or more, that the way does not exceed fifteen feet in width, that the way is the same number of feet originally appropriated, and that he has kept the way open and in repair for seven years or more. Code 1933, §§ 83-119, 85-1401.

Evidence that applicants had acquired a prescriptive right to use a private way warranted judgment of ordinary ordering removal of fence which had been erected by the defendants across the way. Code 1933, §§ 83-119, 85-1401.

Where private way, as originally laid out, was passable and was used and was kept in a reasonable state of repair as a country road, applicant who had acquired a prescriptive right to use way was entitled to removal of fence obstructing way notwithstanding that some detours had been made from the original way. Code 1933, §§ 83-119, 85-1401.

Error from Superior Court, Emanuel County; R. N. Hardeman, Judge.

Proceeding before the ordinary by Ellison Edenfield and others against G. E. Scarboro for the removal of an obstruction from a private way. The judgment of the superior court overruled the certiorari brought by the defendant and reversed the judgment of the ordinary ordering the removal of the obstruction, and the defendant brings error.

Affirmed.

FELTON J., dissenting.

G. H Williams, of Dublin, and Felix C. Williams, of Swainsboro, for plaintiff in error.

I. W. Rountree, of Swainsboro, for defendants in error.

Syllabus OPINION.

SUTTON Judge.

1. In a proceeding before the ordinary under Code, § 83-119, for the removal of an obstruction from a private way, a prescriptive right to use which the applicant claims to have acquired under Code, § 85-1401, it is necessary, to sustain such application, to show not only that he has been in the uninterrupted use thereof for seven years or more, that it does not exceed fifteen feet in width, and that it is the same number of feet originally appropriated, but that he has kept it open and in repair during such period. Collier v. Farr, 81 Ga. 749, 7 S.E. 860; Nashville C. & St. L. Ry. Co. v. Coats, 133 Ga. 820, 66 S.E. 1085; Johnson v. Sams, 136 Ga. 448(2), 71 S.E. 891; Rogers v. Wilson, 171 Ga. 802, 803 (4), 156 S.E. 817; Elliott v. Adams, 173 Ga. 312(4), 160 S.E. 336.

2. In the present case the ordinary was authorized to find under the law and the evidence that the applicants had...