Clanton v. Rowan

98 S.E. 236, 23 Ga. App. 355, 1919 Ga. App. LEXIS 120

• Court: Court of Appeals of Georgia
• Decided: January 29, 1919
• Docket: 9909
• Status: Published

Opinion

Jenkins, J.

1. The reasonable and necessary construction of the petition is that the proceeding was one to require the removal of an obstruction from a private way acquired by seven years uninterrupted use through improved lands. Hopkins v. Roach, 127 Ga. 153 (56 S. E. 303). The ruling made in Johnson v. Williams, 138 Ga. 853 (2) (76 S. E. 380), is therefore not applicable.

2. The petition set forth a cause of action. There was evidence sustaining the allegations as made. There was no demurrer challenging the legal sufficiency of the plaintiff’s averments relative to the nature and character of the alleged obstruction. It was therefore not improper to try the case upon the issue thus made by the allegations of the petition and the denial thereof by the answer. Southern Railway Co. v. Barfield, 115 Ga. 724 (42 S. E. 95).

Judgment affirmed.

Wade, C. J., and Luke, J., concur.