Neal v. Neal

50 S.E. 929, 122 Ga. 804, 1905 Ga. LEXIS 335

• Court: Supreme Court of Georgia
• Decided: May 11, 1905
• Status: Published

Opinion

Lumpkin, J.

(After stating the facts.) 1. When a petition for certiorari has been sanctioned, and the writ issued, on the hearing in the superior court the petition can not be amended. Singer Mfg. Co. v. Walker, 72 Ga. 649; Western & Atlantic R. Co. v. Jackson, 81 Ga. 478. But the writ of certiorari itself is issued by the clerk of the superior court under the sanction of the judge, and if, as clearly appears here, the clerk by some accident affixed an erroneous date to it, the judge of the superior court had authority to pass an order to have the clerical error corrected, so that the writ issuing out of that court should speak the truth. Civil Code, §§ 5118, 5119.

2-5. Ownership of land carries with it ordinarily the right of •exclusive possession; and this is not to be destroyed or taken from the owner except in some mode prescribed by law. A right of private way over the land of another may be acquired in one of four methods: first, by express grant; second, by prescription; third, by implication of law, when such right is necessary to the enjoyment of lands granted by the same owner; fourth, by compulsory purchase and sale through the ordinary, in .'the manner prescribed by the code. Civil Code, § 3065. In this casé it does not appear that the right of private way had been acquired in any one of the three first-mentioned modes. The (owner of the land had obstructed a road which had been used as a private way across it for more than one year, without giving the common users thirty days written notice of his intention to close it, as required by the Political Code, § 673. Upon application to the ordinary he required the obstruction to be removed. The owner then gave to the common users written notice of his intention to close the road after the lapse of thirty days. One of the common users thereupon applied to the ordinary, setting out these facts, and ¿siting that the road be “made permanent, and be granted to him over the land of said T. J. Neal.” The application did not state that the road was one of necessity, and on this ground, and another unnecessary to set out, the landowner filed a demurrer. It was overruled by the ordinary. It is contended by the plaintiff in error that he did not have to allege the existence of any necessity for the way, but that he had a, right to have it “made permanent,” without regard to the question of necessity.

The only mode provided by law for the ordinary to grant or establish private ways, is that set out in sections 661 to 666 of the Political Code. In section 661 the expression used is, “to grant private ways.” In section 662 it is said that such ways must be kept open and in repair by the person on whose application “ they are established.” In section 664 it is said that after all persons over whose land such passway “is to be made” shall Jhave had notice, proceedings shall be taken as prescribed. In section 665 the expression used is, “if the person then over whose land the passway is conceives that he will be damaged thereby,” etc. It will thus be seen that no exact formula of words is used in these sections in reference to the proceeding, but they all refer to the same provisions of law by which a private way may be acquired in the fourth method referred to above. The fact that section 673, after providing that thirty days notice shall be necessary from the owner to the common users before closing the road of the character therein described, adds “ that they may take steps to have it made permanent,” does not create any new or different method of acquiring a permanent private right of way. The constitution declares, that, “ in cases of necessity, private ways may be granted upon just .compensation being first paid by the applicant.” Constitution of 1877, art. 1, sec. 3, par. 1 (Civil Code, § 5729). This limits the power to take from the landowner, without his consent, a right of way, to cases of necessity. The fact that a private way has been used for as much as one year does not establish a way by prescription, nor does it prevent the owner of land from closing such way, but only requires him to give thirty days notice in writing to the common users, in order that they may take proper steps under other sections of the code, if they so desire. But if one of them does so proceed, he is subject to the constitutional limitation above quoted. Charleston Railway Co. v. Fleming, 118 Ga. 699, s. c. 119 Ga. 995 ; Gaines v. Lunsford, 120 Ga. 370; Board of Commissioners v. Harris, 71 Ga. 250; Chattanooga Railroad Co. v. Philpot, 112 Ga. 153; Watkins v. Country Club, 120 Ga. 45, 47.

Judgment affirmed.

All the Justices concur, except Candler, J, absent.