144 Ga. 404 | Ga. | 1915
The petition of J. H. Miller, the plaintiff, addressed to the ordinary, alleged substantially as follows: The defendant, John H. Hill, is the owner of certain described land, and the plaintiff has a private way leading from his, home through the land in possession of the defendant, and intersecting with a certain public road, the total length of which is about three fourths of a mile. The private way has been in constant and uninterrupted use of the plaintiff and was kept open and in repair by him on a permanent road-bed not over 15 feet wide for more than twenty-five years, and no legal steps have ever been taken to abolish the same. The defendant closed up the private way and obstructed it by placing a fence and gate across it. This is the only permanent way plaintiff has leading from his home to the county site of his county, and to mills, church, etc., and the way is a necessity. Plaintiff prayed for a rule nisi directed to the defendant, calling upon him to show cause why the obstructions should not be removed and the full use of the way be re-established. By amendment the plaintiff alleged, that the defendant had placed other obstructions in the way, namely, bricks and rocks, in addition to the gate and fence; that since the petition was served upon him he had placed another fence and gate across the way, thereby further obstructing it; that the way is now on the same 15 feet originally appropriated and continuously used and kept in repair by the plaintiff, and has been continuously used and kept in repair by the plaintiff and his employees for more than thirty years. The ordinary, after considering the evidence and briefs of counsel, ordered the obstructions removed. The defendant filed a petition to the superior court for a certiorari, on various grounds, among which are, (a) that the judgment of the ordinary holding that the gates are an obstruction, under the evidence, is contrary to evidence and contrary to law; (6) that it does not appear from the evidence that the route trav
In Puryear v. Clements, 53 Ga. 232, the defendant had recently put two gates across the private way which was on the lard of the defendant, besides removing a causeway which had been built across a ditch. The commissioners of Walker county, who had jurisdiction of the subject-matter, ordered the gates removed and the causeway restored. On hearing the certiorari in the superior court it was dismissed by the court. This court reversed the judgment of the superior court, on the ground that the plaintiffs could not require the defendant, who had built the causeway, to rebuild it for plaintiffs’ benefit. But in delivering the opinion of the court, Warner, C. J., said, as to the obstructioñ by gates being erected across the way (p. 235) : “If the plaintiffs had a good prescriptive right to use the defendant’s private way, then the- defendant would not have had the right to obstruct their use of it by the erection of gates thereon.” The decision just cited is controlling here, as to the question of gates constituting an obstruction to a private way.
The use of the private way without gates or other obstructions thereon for more than seven years is relied on in the present case. The evidence in the record is sufficient to establish that right. A prescriptive right of way must be determined according to the use during the prescribing period. Jones on Easements, § 415; Shivers v. Shivers, 32 N. J. Eq. 578. In the instant case the use of the way within the prescribing period was without gates, and accordingly the plaiptiff has the right to the use of the way without its being obstructed by them. It follows that the defendant had no right, after the plaintiff had acquired such easement in the way by prescription, to obstruct it by putting a fence and gates across it. The court did not err in overruling the certiorari and refusing a new trial. Questions of possible changes in the fence laws, or a? to prescriptive ways for special purposes, such as agricultural purposes, and whether they would affect the uses acquired by prescription, are not now before us for determination.
Judgment affirmed.