Goodwin v. Bickers

22 Ga. App. 13 | Ga. Ct. App. | 1918

Harwell, J.

This was a proceeding before the ordinary of Greene County, brought by Miss Abbie Goodwin against D’. H. Bickers, to remove obstructions from a private way leading to the rear of her lot in Greensboro. The evidence was rather volumñ nous, and it would serve no good purpose to attempt to set it out at length. She claimed the right to the way under section 824 of the Civil Code of 1910, alleging that it had been in constant and uninterrupted use for more than seven years, and that no legal steps had been taken to abolish it. She claimed a prescriptive right to the way by the uninterrupted use of it by her tenant and the tenant of her predecessor in title, for more than seven years, and by the keeping of it in repair during that time. The ordinary refused to remove the obstruction's. She carried the case by certiorari to the superior court; the trial judge overruled the certiorari, and she excepts.

The burden was on the'plaintiff to show the constant and unin-' terrupted use of the .way for seven years or longer, and that it had been kept in repair during that time. The evidence was conflicting; and the ordinary, after personally inspecting the premises, determined the issue against the plaintiff. It appears that she can lay out over her own lot a way to her barn, without the use of this way, which is over the property of others, and for which no compensation has been paid. The judge of the superior court carefully reviewed the judgment of the ordinary, writing an-opinion of some .length, and citing in support of his opinion the following cases: Forrester v. McKaig, 144 Ga. 702 (87 S. E. 1060); Carlton v. Seaboard Air-Line Ry., 143 Ga. 516 (85 S. E. 863, Ann. Cas. 1917A, 497); Johnson v. Sams, 136 Ga. 448 (71 S. E. 891); Nashville &c. Ry. v. Coats, 133 Ga. 820 (66 S. E. 1085); Gardner v. Swann, 114 Ga. 304 (40 S. E. 271); Chattanooga &c. Ry. Co. v. Philpot, 112 Ga. 153 (37 S. E. 181); Wade v. Johnson, 94 Ga. 349 (21 S. E. 569); Cook v. Gammon, 93 Ga. 298 (20 S. E. 332); Cunningham v. Elliott, 92 Ga. 159 (18 S. E. 365); Herndon v. Strickland, 86 Ga. 323 (12 S. E. 642); Russell v. Napier, 82 Ga. 770 (9 S. E. 746); Collier v. Farr, 81 Ga. 749 (7 S. E. 860); Woolbright v. Cureton, 76 Ga. 107; Nott v. Tinley, 69 Ga. 766; Childers v. Holoway, 69 Ga. 758; Puryear v. Clements, 53 Ga. 232.

We have carefully gone through the record and the briefs, and we see no reason to interfere; and the judgment overruling the certiorari is

Affirmed.

Broyles,'’ P. J. and Bloodworth, J., concur.