BENHAM, Justice.
This appeal involves the laws pursuant to which governmental bodies acquire a roadway by prescription. The unpaved roadway in question is located in Paulding County and is known variously as Rutledge Road and Graves Mountain Road. Appellees are persons whose property is crossed by the road or is adjacent to the road. They brought suit against appellants, members of the Paulding County Board of Commissioners (hereinafter “the County”), seeking a writ of mandamus requiring the County to maintain the road. After a hearing, the trial court issued a judgment granting the writ. In doing so, it held a governmental body may obtain prescriptive title to a road in either of two ways: pursuant to the provisions of OCGA § 44-5-163* 1 by possessing the road for a period of 20 years while meeting the requirements of OCGA § 44-5-161,2 or pursuant to OCGA § 32-3-3 (c),3 which requires unlimited public use of the road for the preceding seven years or more. The trial court based the grant of the writ on its holding that the evidence established title had been acquired by the County pursuant to OCGA §§ 44-5-161 and 44-5-163 and, since the road had not been abandoned pursuant to OCGA § 32-7-2 (b) (1), appellees were entitled to mandamus relief.
This appeal is from that order, but the County does not challenge on appeal the trial court’s factual findings or its holdings that the elements of prescriptive acquisition pursuant to OCGA §§ 44-5-161 and 44-5-163 had been met and that the road had not been formally [386] abandoned.4 Instead, the County contends the two methods of prescription named by the trial court are not two methods, either of which would result in prescription, but are two parts of the only method. That is, the County argues appellees would have to show not only that the County possessed the road for 20 years in conformance with the requirements of OCGA§ 44-5-161, but also that, pursuant to OCGA § 32-3-3 (c), the road has come to be a public road by the exercise of unlimited public use for the preceding seven years or more. Given the absence of a challenge to the trial court’s holdings regarding OCGA §§ 44-5-161 and 44-5-163, resolution of the issue raised by the County will be dispositive of this appeal.
The method set forth in OCGA § 44-5-163, which by its terms applies to everyone andnotjust governments, hasbeen recognized for many years in Georgia as a way by which a road may become a public road. See Dunaway v. Windsor, 197 Ga. 705, 710-711 (30 SE2d 627) (1944); Savannah, F. & W. Ry. Co. v. Gill, 118 Ga. 737 (6) (45 SE 623) (1903). By contrast, the method set out in OCGA § 32-3-3 (c) first appeared in our Code in 1973 when the General Assembly repealed Title 95 of the Georgia Code of 1933 and enacted in its place Title 95A. Ga. Laws 1973, pp. 947, 1008. The opening words of OCGA § 32-3-3 (c), “Notwithstanding Code Section 44-5-163, . . .” suggest the new section was intended to provide a more expeditious and less burdensome alternative means by which a governmental body could acquire a road by prescription, and was not intended to add another requirement to be met in addition to those in OCGA §§ 44-5-161 and 44-5-163. The word “notwithstanding” means “without prevention or obstruction from” or “in spite of.” Webster’s Third New International Dictionary (1976), p. 1545. Thus, the plain language of OCGA § 32-3-3 (c) means that, without any obstruction from OCGA § 44-5-163, a county may acquire title to a road in seven years if the requirements of OCGA § 32-3-3 (c) are met. Yet, the dissents argue that a county must satisfy the requirements of both OCGA§ 44-5-163 and § 32-3-3 (c) before it may acquire title to a road by prescription. Under the dissents’ interpretation, if a private road has had unlimited public use for seven years, a county still cannot acquire title to the road until another thirteen years have gone by and the requirements of OCGA §§ 44-5-161 and 44-5-163 are satisfied as well.
Free access — add to your briefcase to read the full text and ask questions with AI
BENHAM, Justice.
This appeal involves the laws pursuant to which governmental bodies acquire a roadway by prescription. The unpaved roadway in question is located in Paulding County and is known variously as Rutledge Road and Graves Mountain Road. Appellees are persons whose property is crossed by the road or is adjacent to the road. They brought suit against appellants, members of the Paulding County Board of Commissioners (hereinafter “the County”), seeking a writ of mandamus requiring the County to maintain the road. After a hearing, the trial court issued a judgment granting the writ. In doing so, it held a governmental body may obtain prescriptive title to a road in either of two ways: pursuant to the provisions of OCGA § 44-5-163* 1 by possessing the road for a period of 20 years while meeting the requirements of OCGA § 44-5-161,2 or pursuant to OCGA § 32-3-3 (c),3 which requires unlimited public use of the road for the preceding seven years or more. The trial court based the grant of the writ on its holding that the evidence established title had been acquired by the County pursuant to OCGA §§ 44-5-161 and 44-5-163 and, since the road had not been abandoned pursuant to OCGA § 32-7-2 (b) (1), appellees were entitled to mandamus relief.
This appeal is from that order, but the County does not challenge on appeal the trial court’s factual findings or its holdings that the elements of prescriptive acquisition pursuant to OCGA §§ 44-5-161 and 44-5-163 had been met and that the road had not been formally [386] abandoned.4 Instead, the County contends the two methods of prescription named by the trial court are not two methods, either of which would result in prescription, but are two parts of the only method. That is, the County argues appellees would have to show not only that the County possessed the road for 20 years in conformance with the requirements of OCGA§ 44-5-161, but also that, pursuant to OCGA § 32-3-3 (c), the road has come to be a public road by the exercise of unlimited public use for the preceding seven years or more. Given the absence of a challenge to the trial court’s holdings regarding OCGA §§ 44-5-161 and 44-5-163, resolution of the issue raised by the County will be dispositive of this appeal.
The method set forth in OCGA § 44-5-163, which by its terms applies to everyone andnotjust governments, hasbeen recognized for many years in Georgia as a way by which a road may become a public road. See Dunaway v. Windsor, 197 Ga. 705, 710-711 (30 SE2d 627) (1944); Savannah, F. & W. Ry. Co. v. Gill, 118 Ga. 737 (6) (45 SE 623) (1903). By contrast, the method set out in OCGA § 32-3-3 (c) first appeared in our Code in 1973 when the General Assembly repealed Title 95 of the Georgia Code of 1933 and enacted in its place Title 95A. Ga. Laws 1973, pp. 947, 1008. The opening words of OCGA § 32-3-3 (c), “Notwithstanding Code Section 44-5-163, . . .” suggest the new section was intended to provide a more expeditious and less burdensome alternative means by which a governmental body could acquire a road by prescription, and was not intended to add another requirement to be met in addition to those in OCGA §§ 44-5-161 and 44-5-163. The word “notwithstanding” means “without prevention or obstruction from” or “in spite of.” Webster’s Third New International Dictionary (1976), p. 1545. Thus, the plain language of OCGA § 32-3-3 (c) means that, without any obstruction from OCGA § 44-5-163, a county may acquire title to a road in seven years if the requirements of OCGA § 32-3-3 (c) are met. Yet, the dissents argue that a county must satisfy the requirements of both OCGA§ 44-5-163 and § 32-3-3 (c) before it may acquire title to a road by prescription. Under the dissents’ interpretation, if a private road has had unlimited public use for seven years, a county still cannot acquire title to the road until another thirteen years have gone by and the requirements of OCGA §§ 44-5-161 and 44-5-163 are satisfied as well.
Notwithstanding the apparent distinction between the two methods of prescriptive acquisition of roadways, the County’s argument is [387] supported by language in this Court’s decision in Chandler v. Robinson, 269 Ga. 881 (2) (506 SE2d 121) (1998). In that case, this Court combined the provisions of the two statutes in stating the requirements for a governmental body to acquire a roadway by prescription. However, after having stated the requirements as a single list, the opinion in Chandler resolves the issue in two ways, first by applying OCGA§ 32-3-3 (c) and ruling that the fact the road was blocked for ten years prior to the claim of prescription prevented prescriptive acquisition pursuant to that Code section, and then by applying the requirements of OCGA §§ 44-5-161 and 44-5-163 and holding that since the previous use of the roadway was permissive, not adverse, there could be no prescriptive acquisition by that method. Since failure under either of the two statutory procedures would have sufficed to resolve the issue if they were both part of a single method, the separate treatment given the procedures in Chandler indicates that although they were listed together, they were not considered by this Court to be part of a single procedure. Furthermore, reading Chandler as urged by the County and the dissents to require compliance with both statutory procedures in every case would lead to the absurd result in this case of the County obtaining prescriptive title to the roadway in the 1950s and then having that title vanish in 1973 when OCGA § 32-3-3 was first enacted.
Upon consideration of the language of OCGA § 32-3-3 (c) and the treatment of the two statutory procedures in Chandler, we conclude the combination of the requirements of OCGA §§ 44-5-161 and 44-5-163 and OCGA § 32-3-3 (c) in Chandler was inadvertent. The two statutory procedures are not, as the County argues here, a single method. Accordingly, we disapprove the portion of the second division of Chandler combining the two methods and now hold the two statutory methods are separate and distinct.5
The argument in Justice Carley’s dissent that the separate analyses in Chandler show thorough treatment rather than application of two separate principles ignores the fact that after an issue is resolved in an appellate opinion, subsequent analysis on another theory amounts to an advisory opinion or mere dicta. Moreover, that dissent’s presentation of the facts omits that the requirements for prescription with regard to the road involved in this case were [388] completed in the 1950s, at a time when the evidence shows the County was actively maintaining the road. Both dissents overlook the illogic in arguing that a roadway acquired by prescription pursuant to the predecessor of OCGA §§ 44-5-161 and 44-5-163 almost 20 years before OCGA § 32-3-3 was enacted must be obtained again because the two statutes were inadvertently combined in an appellate opinion. If the dissents are correct in their assertion that enactment of a new requirement for obtaining title by prescription can operate to divest title established 20 years earlier by compliance with existing law, every roadway that has ever been acquired by prescription is subject to divestment at the whim of the legislature. The suggestion in Justice Melton’s dissent that the County may not have acquired prescriptive title to the roadway conflicts with the undisputed evidence in the record of this case, unchallenged on appeal by the County. Finally, in urging that a county’s failure to meet its obligation to maintain public roads is an acceptable method of abandoning a roadway, Justice Carley’s dissent ignores the precedent of McDilda v. Bd. of Commrs. of Bulloch County, 230 Ga. App. 530 (1) (497 SE2d 25) (1998), cited earlier herein in footnote 4, and encourages counties to disregard their public duty.
As noted above, separating the two methods is dispositive of this appeal. Since the trial court’s finding of prescriptive acquisition and non-abandonment are not challenged and we have held compliance with OCGA § 32-3-3 (c) need not be shown when a roadway is otherwise acquired by prescription, the trial court’s judgment must be affirmed.
Judgment affirmed.
All the Justices concur, except Carley and Melton, JJ., who dissent.