31 S.E.2d 925 | Ga. Ct. App. | 1944
1. The first grant of a new trial on certiorari will not be disturbed by this court, where the judgment excepted to was not demanded by the evidence.
2. The right of private way over another's improved lands may arise from prescription by seven years' uninterrupted use through such lands. Where the right to a private way is based on prescription by seven years' uninterrupted use thereof through improved lands, it is necessary for the applicant to show that he has been in uninterrupted use of the way for seven years or more, that it does not exceed fifteen feet in width, that it is the same number of feet originally appropriated, and that he has kept it open and in repair during such period.
3. Possession must be adverse in order to form the basis for prescription, but in the case of a private way the use may originate in permission, and yet may ripen by prescription. When the use of a private way originates by permission of the owner, prescription does not begin to run until the user notifies the owner, by repairs or otherwise, that he *691 has changed his position from that of a mere licensee to that of a prescriber. 4. The court did not err in remanding the case for retrial.
On the trial, after both parties had introduced evidence tending to sustain their respective contentions, the ordinary ordered the obstruction removed from the alleged private way. The defendant sued out a certiorari to review that judgment and assigned error therein on the grounds, among others, that the evidence failed to show any right in the plaintiff to have the obstruction removed; that the evidence showed that the plaintiff began using the road and making repairs thereon by permission of G. F. Lodge, the landowner, and that at no time during Lodge's lifetime and while his heirs were in possession of the land, up to *692 about 1938, did the plaintiff use or repair said road under any claim of right, but at all times used and repaired it by permission of the owner; that the evidence failed to show any adverse claim to the road by the plaintiff; and failed to show that the plaintiff had acquired a prescriptive title to the alleged road.
The judge of the superior court ordered that the case be remanded to the ordinary "with direction that said issue be retried, and if the evidence shows that the repairs on said road were with the permission of the landowner, a finding be made in favor of the defendant." The plaintiff excepted.
1. The first grant of a new trial on certiorari will not be disturbed by this court, where the judgment excepted to was not demanded by the evidence. McWhorter v. Stein,
2. The Code, § 85-1401, provides: "The right of private way over another's land may arise from express grant; or from prescription by seven years' uninterrupted use through improved lands, or twenty years' use over wild lands." § 83-112 is as follows: "Whenever a private way has been in constant and uninterrupted use for seven years or more, and no legal steps have been taken to abolish the same, it shall not be lawful for anyone to interfere with said private way." The plaintiff's right to the private way in question was based on prescription by seven years' uninterrupted use thereof through improved lands, and the proceeding to remove the obstruction was brought under the Code, § 83-119. In order to sustain such a proceeding it is necessary for the applicant to show that he has been in uninterrupted use of the way for seven years or more, that it does not exceed fifteen feet in width, that it is the same number of feet originally appropriated, and that he has kept it open and in repair during such period. Scarboro v. Edenfield,
3. The plaintiff in error contends that the judge of the superior court erred in remanding the case with direction that the said "issue be retried, and if the evidence shows that the repairs on said road were with the permission of the landowner, a finding be made in favor of the defendant." Under the evidence, the plaintiff's right to the use of the road in question originated by permission of the landowner; and the defendant in error contends that the continued use of the road by the plaintiff and the repairs made thereon by him were by permission of the landowner, and, consequently, no prescriptive right or title to the road was ever acquired by the plaintiff. InKirkland v. Pitman,
Affirmed. Felton and Parker, JJ., concur.