Short v. Walton

• Decision Date: 31 August 1878
• Citation: 62 Ga. 28
• Parties: Short et al. v. Walton et al.
• Court: Georgia Supreme Court

62 Ga. 28

Short et al. v. Walton et al.

Supreme Court of the State of Georgia

(August Term, 1878.)

Prescription. Roads and bridges. Before Judge POTTLE. Wilkes Superior Court. May Term, 1878.

Reported in the decision.

F. H. Colley, for plaintiffs in error, cited as follows: Way must be uniform, continuous and adverse. Washburne on Eas., 123, 132, 140, 269, 683, 160, 131, 135, 136, 138, 139 Code, §§ 737, 2235; 44 Ga., 30; 56 Ib., 508.

B. S. Irvin; W. M. Sims, for defendants, cited as follows: Private ways, Code, 737, 738, 2235. Final decision on certiorari right, Code, § 4067; 58 Ga., 142; Code, 732, 737, 738, 2235; 7 Ga., 348; 53 Ib., 232. Easement by prescription, Code, 2678, 2683; Washburne on Eas., 110, 114, 139, 142, 144, 661, 662, 663, 669, 670; 4 Ga., 308; 7 Ib., 387.

Warner, Chief Justice.

This case came before the court below on a certiorari to the ordinary of Wilkes county. It appears from the record that Walton et al. petitioned the ordinary to have certain obstruction which had been made to an alleged private way removed therefrom. The ordinary refused the application, and the petitioners sued out a writ of certiorari, and the court, after considering the return of the ordinary and the evidence, sustained the certiorari, and ordered that the obstructions to the alleged private way claimed by the petitioners, should be removed; whereupon the defendants in certiorari excepted.

It appears from the return of the ordinary and the evidence in the record, that the petitioners had been in the habit of using a private way over the unenclosed land of Short and Colley for more than seven years—that is to say, *the general direction of the road used by them was the same, but that from ruts, mudholes, and other obstructions, the bed of the road was frequently changed for a considerable distance, and that for awhile it came out one hundred yards above its present place. The petitioners claim a prescriptive right of way over the land of Short and Colley, under the evidence in the record. This is an important question as regards the owners of unenclosed lands in this state. Person may obtain private ways over the lands of others, by an order from the ordinary, or by prescription of seven years, but such private ways must not exceed fifteen feet in width, and must be kept open and in repair by the persons for whose benefit the same are established. Code, § 721. Did the petitioners, by using a road over the unenclosed lands of Short and Colley, sometimes in...