Cowart v. Baker

Court of Appeals of Georgia

Cowart v. Baker

8 S.E.2d 732, 62 Ga. App. 502, 1940 Ga. App. LEXIS 317

CourtCourt of Appeals of Georgia

DecidedApril 10, 1940

Docket28128.

StatusPublished

Cited by1 cases

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Bluebook

Cowart v. Baker, 8 S.E.2d 732, 62 Ga. App. 502, 1940 Ga. App. LEXIS 317 (Ga. Ct. App. 1940).

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Opinion

Guerry, J.

1. Where the plaintiff as a user of a private way over the land of another person brings his petition to the ordinary under the Code, §§ 83-112, 83-119, for removal of an obstruction placed by that person across the way, barring its further use, and alleges that the way has been in constant and uninterrupted use by himself and others for more than twenty-five years, and when on a trial there is a conflict of the evidence, as in this case, “the ordinary settles that conflict,” and it is not error for the superior court to refuse to disturb “his settlement of the issues of fact on such a conflict." Everedge v. Alexander, 75 Ga. 858 (5).

2. “Under a proceeding to cause obstructions to be removed from a private way,” based upon the Code, §§ 83-112, 83-119, “and alleging solely that the way was one established by prescription for more than seven years, the applicant is not entitled to a judgment by proof that the road has been in use as a private way for more than a year, and that the owner has closed it without giving to the common users thirty days notice in writing, in order that they might take legal steps to have it made permanent, as required by” the Code, § 83-114. Nugent v. Watkins, 129 Ga. 382 (3), 385 (58 S. E. 888), and cit. See Barnes v. Holcomb, 35 Ga. App. 713 (134 S. E. 628), where the petition for removal was brought under § 83-114 (Code of 1910, § 819) ; Powell v. Amoss, 85 Ga. 273, 275 (11 S. E. 598).

3. The ordinary in the instant case denied the prayers of the petition for removal, to which exceptions were taken by certiorari. The evidence supported the finding of the ordinary, and the superior court did not err in overruling the certiorari.

Judgment affirmed.

Broyles, O. J., and MacIntyre, J., concur. *503 Evans & Milam, Eerschell V. Shelton, for plaintiff. Frank A. Doughman, for defendant.

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Guerry, J.

1. Where the plaintiff as a user of a private way over the land of another person brings his petition to the ordinary under the Code, §§ 83-112, 83-119, for removal of an obstruction placed by that person across the way, barring its further use, and alleges that the way has been in constant and uninterrupted use by himself and others for more than twenty-five years, and when on a trial there is a conflict of the evidence, as in this case, “the ordinary settles that conflict,” and it is not error for the superior court to refuse to disturb “his settlement of the issues of fact on such a conflict." Everedge v. Alexander, 75 Ga. 858 (5).

2. “Under a proceeding to cause obstructions to be removed from a private way,” based upon the Code, §§ 83-112, 83-119, “and alleging solely that the way was one established by prescription for more than seven years, the applicant is not entitled to a judgment by proof that the road has been in use as a private way for more than a year, and that the owner has closed it without giving to the common users thirty days notice in writing, in order that they might take legal steps to have it made permanent, as required by” the Code, § 83-114. Nugent v. Watkins, 129 Ga. 382 (3), 385 (58 S. E. 888), and cit. See Barnes v. Holcomb, 35 Ga. App. 713 (134 S. E. 628), where the petition for removal was brought under § 83-114 (Code of 1910, § 819) ; Powell v. Amoss, 85 Ga. 273, 275 (11 S. E. 598).

3. The ordinary in the instant case denied the prayers of the petition for removal, to which exceptions were taken by certiorari. The evidence supported the finding of the ordinary, and the superior court did not err in overruling the certiorari.

Judgment affirmed.

Broyles, O. J., and MacIntyre, J., concur. *503 Evans & Milam, Eerschell V. Shelton, for plaintiff. Frank A. Doughman, for defendant.

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Bluebook (online)

8 S.E.2d 732, 62 Ga. App. 502, 1940 Ga. App. LEXIS 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cowart-v-baker-gactapp-1940.

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