38 Ga. App. 494 | Ga. Ct. App. | 1928
This was a petition brought under section 825 of the Civil Code (1910), to remove an obstruction from a private way. It-appears that a private road, not over fifteen feet in width, had been uninterruptedly used, kept up, and maintained along the same road-bed, diagonally across the lot involved, for more than
“Before an applicant can have obstructions removed from a private way, he must show not only that there has been an uninterrupted use for more than seven years, but that it is not more than fifteen feet wide, and that he has kept it open and in repair, and that it is the same fifteen feet originally appropriated.” Collier v. Farr, 81 Ga. 749 (7 S. E. 860); Forrester v. McKaig, 144 Ga. 702 (87 S. E. 1060). It has been held, however, that where the general width of a private way does not exceed fifteen feet, the mere existence of a few wider places will not defeat the right of the users. Accordingly, the increased width of the private road as it formerly turned out in either direction into a public road can not be said, as a matter of law, to have caused a forfeiture of the petitioner’s rights. It appearing, however, that for the two years preceding -the filing of the petition to remove obstructions there had been a change in the road-bed of the prescriptive road, and that the road as' it existed at the time the petition was filed was not the same fifteen feet, originally appropriated, and that the private way as it then existed had been maintained only for a period of about two years, the court erred in sustaining the application, and in ordering the obstructions removed. The provisions of section 819 of the Civil Code (1910), relating to closing private ways in existence for as much as one year without first giving the users thereof notice in writing,
Judgment reversed.
