Green v. Bethea

30 Ga. 896

Opinion

By the Court.

Lumpkin, J.,

delivering the opinion.

This writ of error is prosecuted to reverse the judgment of the Court below in dissolving an injunction.

A road runs from Talbotton through Green’s land, through the Gap in Oak Mountain to Flint Hill. It has been traveled for the last twenty years. Green, to protect his plantation, once kept a fence across the road. Subsequently, he erected a gate at each end of the road. In 1847, the Inferior Court of Talbot county passed an order declaring it a public road, but making no compensation to Green for this appropriation of his land to public use. He has continued ever since that time to keep up his gates, as his necessities might require.

Recently the Commissioners of Roads have proceeded by fine to compel him to remove the gates; and they have given orders to the overseers to cut them down. The bill was brought to restrain these proceedings.

It appears that the public have never, either before or since 1847, had the uninterrupted use of this road for seven years continuously. It further appears that the public never did enjoy other than a qualified use of the road. The public can take nothing by the Act of 1847, as it provides no compensation for Green. Their adverse possession under this illegal order even is not complete. Hence, they cannot claim upon that ground. They can only claim by prescription, and their prescriptive right is qualified, namely, that Mr. Green be permitted to keep up these gates for the protection of his property.

Our judgment, therefore, is, that the injunction be retained, and that so long as Mr. Green affords the facilities to the public which he does, that he should not and cannot be interrupted.