Fulford v. Fulford

187 S.E.2d 867, 228 Ga. 772, 1972 Ga. LEXIS 904

• Court: Supreme Court of Georgia
• Decided: March 9, 1972
• Docket: 26990
• Status: Published

Opinion

Nichols, Justice.

1. One of the prime requisites to title by prescription of a private way is that the same private way be used the entire period necessary to establish the prescriptive right. Compare Rothberg v. Peachtree Investments, Inc., 220 Ga. 776, 778 (142 SE2d 264). The plaintiff testified that parts of the alleged "private way” had been moved as much as five hundred feet from time to time and thus, this essential element, that the same private way be used for the entire period necessary to establish the prescriptive right, although contradicted by the defendants’ evidence, was not without dispute so as to demand a verdict for the defendants.

2. The evidence as to the way of necessity was likewise not without conflict for there was evidence of another entrance to the lands claimed to be land locked which had been used through the years by various persons sufficiently to authorize the jury to determine that the defendants’ land was not land locked.

3. The judgments of the trial court refusing to grant the defendants’ motion for a directed verdict and the refusal to thereafter grant them a judgment notwithstanding the mistrial was not error for any reason enumerated.

Judgment affirmed.

All the Justices concur.