Johnson v. Sams

71 S.E. 891, 136 Ga. 448, 1911 Ga. LEXIS 572

• Court: Supreme Court of Georgia
• Decided: June 17, 1911
• Status: Published

Opinion

Atkinson, J.

1. The ordinary of McIntosh county has jurisdiction of a proceeding to remove obstructions from an alleged private way existing by prescription over the lands of another within the limits of the town of Darien. Civil Code (1910), § 825; Duggan v. Cox, 78 Ga. 158 (1 S. E. 428).

2. To sustain an application for the removal of obstructions from an alleged private way, the right to which is based upon prescription by seven years’ user, it is essential that the applicant show not only that he has been in the uninterrupted use thereof for seven years or more, that it does not exceed fifteen feet in width, aiid that it is the same fifteen feet originally appropriated, but that he has kept it open and in repair during such period. Collier v. Farr, 81 Ga. 749 (7 S. E. 860), and cases cited; Nashville etc. Ry. Co. v. Coats, 133 Ga. 820 (66 S. E. 1085).

(«) In the present case there was evidence that the defendant had kept the alleged private way open and had permitted the applicant for the removal of the obstructions to use it, but there was no evidence tending to show that the applicant had kept it open and made repairs on it; and hence the evidence was insufficient to authorize the ordinary to pass an order requiring the removal of the obstructions. Accordingly, the judge' of the superior court erred in sustaining, on certiorari, the judgment of the ordinary ordering such removal.

Judgment reversed.

All the Justices concur.