Tomberlin v. Barber

Court of Appeals of Georgia

Tomberlin v. Barber

101 S.E. 196, 24 Ga. App. 484, 1919 Ga. App. LEXIS 871

CourtCourt of Appeals of Georgia

DecidedNovember 19, 1919

Docket10678

StatusPublished

This text of 101 S.E. 196 (Tomberlin v. Barber) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tomberlin v. Barber, 101 S.E. 196, 24 Ga. App. 484, 1919 Ga. App. LEXIS 871 (Ga. Ct. App. 1919).

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Opinion

Smith, J.

1. Where one complains of the obstruction of an alleged prescriptive private way across the lands of another, he must show an uninterrupted use of the way for more than seven years, that it was not more than fifteen feet wide, that it is the same fifteen feet originally laid out, and that he has kept it open and in repair. Nashville, Chattanooga & St. Louis Ry. v. Coats, 133 Ga. 820 (66 S. E. 1085); Hays v. Hays, 23 Ga. App. 689 (99 S. E. 230).

2. As disclosed by the ordinary’s answer to the writ of certiorari, the evidence was conflicting as to all the essential things enumerated above; and it is well settled that unless the judgment rendered in the lower court is absolutely demanded by the evidence, the first grant of a new trial on certiorari, in the absence of any controlling question of law, will not be disturbed. Fair v. Metropolitan Life Ins. Co., 2 Ga. App. 376 (58 S. E. 492); Freeman v. Maxwell, 10 Ga. App. 316 (73 S. E. 349); Cochran v. Minter, 10 Ga. App. 377 (73 S. E. 551); Rowland v. Bell, 12 Ga. App. 137 (76 S. E. 995).

Judgment affirmed.

Jenhins, P. J., and Stephens, J., concur.

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Smith, J.

1. Where one complains of the obstruction of an alleged prescriptive private way across the lands of another, he must show an uninterrupted use of the way for more than seven years, that it was not more than fifteen feet wide, that it is the same fifteen feet originally laid out, and that he has kept it open and in repair. Nashville, Chattanooga & St. Louis Ry. v. Coats, 133 Ga. 820 (66 S. E. 1085); Hays v. Hays, 23 Ga. App. 689 (99 S. E. 230).

2. As disclosed by the ordinary’s answer to the writ of certiorari, the evidence was conflicting as to all the essential things enumerated above; and it is well settled that unless the judgment rendered in the lower court is absolutely demanded by the evidence, the first grant of a new trial on certiorari, in the absence of any controlling question of law, will not be disturbed. Fair v. Metropolitan Life Ins. Co., 2 Ga. App. 376 (58 S. E. 492); Freeman v. Maxwell, 10 Ga. App. 316 (73 S. E. 349); Cochran v. Minter, 10 Ga. App. 377 (73 S. E. 551); Rowland v. Bell, 12 Ga. App. 137 (76 S. E. 995).

Judgment affirmed.

Jenhins, P. J., and Stephens, J., concur.

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Bluebook (online)

101 S.E. 196, 24 Ga. App. 484, 1919 Ga. App. LEXIS 871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tomberlin-v-barber-gactapp-1919.

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