Wilson v. Smith

Court of Appeals of Georgia

Wilson v. Smith

39 S.E.2d 591, 74 Ga. App. 251, 1946 Ga. App. LEXIS 510

CourtCourt of Appeals of Georgia

DecidedSeptember 21, 1946

Docket31331.

StatusPublished

Cited by4 cases

This text of 39 S.E.2d 591 (Wilson v. Smith) 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

Wilson v. Smith, 39 S.E.2d 591, 74 Ga. App. 251, 1946 Ga. App. LEXIS 510 (Ga. Ct. App. 1946).

Pincite

Opinion

Felton, J.

The defendant in error contends that where the use of a private way does not. originate by permission of the owner, mere use for seven years will suffice and that it is not necessary to prove that the applicant has kept the way open and in repair for seven years. We have examined every case we could find on the subject and we have been unable to find any support for the contention of defendant in error. As we understand the decisions, whether the use of the way originates by permission of the owner or the prescriptive right is based oh mere use and tacit permission or failure to object on the part of the owner, the applicant must prove that he has kept the way open and has repaired it over a seven-year period sufficiently to put the owner on notice that the applicant claims the right to use the way adversely to the owner where he bases his claim on such notice. In this case the evidence shows only one instance of repair and that at the end of the seven-year period. It was erpor to require the removal of the obstruction under the pleadings and evidence. Hall v. Browning, 195 Ga. 423 (24 S. E. 2d, 392); Johnson v. Sams, 136 Ga. 448 (71 S. E. 891); Massee-Felton Lumber Co. v. Weideman, 60 Ga. App. 730 (5 S. E. 2d, 243); Scarboro v. Edenfield, 58 Ga. App. 619 (199 S. E. 325); Burnum v. Thomas, 71 Ga. App. 690 (31 S. E. 2d, 925); Rogers v. Wilson, 171 Ga. 802 (156 S. E. 817); First Christian Church v. Realty Investment Co., 180 Ga. 35 (178 S. E. 303); Miller v. Slater, 182 Ga. 552 (186 S. E. 413); Thomas v. Burnum, 69 Ga. App. 37 (24 S. E. 2d, 812); Kirkland v. Pitman, 122 Ga. 256 (50 S. E. 117); Nashville &c. Ry. v. Coats, 133 Ga. 820 (66 S. E. 1085); Short v. Walton, 61 Ga. 29; Aaron v. Gunnels, 68 Ga. 528; Nott v. Tinley, 69 Ga. 766; Collier v. Farr, 81 Ga. 749 (7 S. E. 860); Charleston dec. Ry. Co. v. Fleming, 118 Ga. 699 (45 *253 S. E. 664); Holloway v. Birdsong, 139 Ga. 316 (77 S. E. 146); Cook v. Gammon, 93 Ga. 398 (30 S. E. 333). If the ruling in Hardin v. Snow, 301 Ga. 58 (38 S. E. 2d, 836), decided July 3, 1946, is contrary to what is here ruled, this court is bound by the older decisions of the Supreme Court. As indicated above, this was not a proceeding to remove the obstruction on the ground that the applicant had used the way for as much as one year and that the landowner had closed it without giving thirty days’ written notice of his intention to do so. Ford v. Waters, 37 Ga. App. 83 (107 S. E. 351), and there is in this case no evidence of any claim of an adverse right other than that of the one repair.

Judgment reversed.

Sutton, P. J., and Parker, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Felton, J.

The defendant in error contends that where the use of a private way does not. originate by permission of the owner, mere use for seven years will suffice and that it is not necessary to prove that the applicant has kept the way open and in repair for seven years. We have examined every case we could find on the subject and we have been unable to find any support for the contention of defendant in error. As we understand the decisions, whether the use of the way originates by permission of the owner or the prescriptive right is based oh mere use and tacit permission or failure to object on the part of the owner, the applicant must prove that he has kept the way open and has repaired it over a seven-year period sufficiently to put the owner on notice that the applicant claims the right to use the way adversely to the owner where he bases his claim on such notice. In this case the evidence shows only one instance of repair and that at the end of the seven-year period. It was erpor to require the removal of the obstruction under the pleadings and evidence. Hall v. Browning, 195 Ga. 423 (24 S. E. 2d, 392); Johnson v. Sams, 136 Ga. 448 (71 S. E. 891); Massee-Felton Lumber Co. v. Weideman, 60 Ga. App. 730 (5 S. E. 2d, 243); Scarboro v. Edenfield, 58 Ga. App. 619 (199 S. E. 325); Burnum v. Thomas, 71 Ga. App. 690 (31 S. E. 2d, 925); Rogers v. Wilson, 171 Ga. 802 (156 S. E. 817); First Christian Church v. Realty Investment Co., 180 Ga. 35 (178 S. E. 303); Miller v. Slater, 182 Ga. 552 (186 S. E. 413); Thomas v. Burnum, 69 Ga. App. 37 (24 S. E. 2d, 812); Kirkland v. Pitman, 122 Ga. 256 (50 S. E. 117); Nashville &c. Ry. v. Coats, 133 Ga. 820 (66 S. E. 1085); Short v. Walton, 61 Ga. 29; Aaron v. Gunnels, 68 Ga. 528; Nott v. Tinley, 69 Ga. 766; Collier v. Farr, 81 Ga. 749 (7 S. E. 860); Charleston dec. Ry. Co. v. Fleming, 118 Ga. 699 (45 *253 S. E. 664); Holloway v. Birdsong, 139 Ga. 316 (77 S. E. 146); Cook v. Gammon, 93 Ga. 398 (30 S. E. 333). If the ruling in Hardin v. Snow, 301 Ga. 58 (38 S. E. 2d, 836), decided July 3, 1946, is contrary to what is here ruled, this court is bound by the older decisions of the Supreme Court. As indicated above, this was not a proceeding to remove the obstruction on the ground that the applicant had used the way for as much as one year and that the landowner had closed it without giving thirty days’ written notice of his intention to do so. Ford v. Waters, 37 Ga. App. 83 (107 S. E. 351), and there is in this case no evidence of any claim of an adverse right other than that of the one repair.

Judgment reversed.

Sutton, P. J., and Parker, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

39 S.E.2d 591, 74 Ga. App. 251, 1946 Ga. App. LEXIS 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-smith-gactapp-1946.

Opinion

Related

Cite This Page — Counsel Stack