138 Ga. 853 | Ga. | 1912
W. W. Williams and others filed a petition against J. L. Johnson, before the ordinary of Bulloch county, praying for the removal of an obstruction from a private way, which was alleged to have been in the constant and uninterrupted use of the applicants for a period of seven years. A demurrer was interposed to the sufficiency of the petition as stating a cause of action. An amendment to the petition was allowed over objection. The court overruled the demurrer, and adjudged that the defendant remove the obstruction, on the ground that he failed to give 30 days written notice of his intention to close the private way; the court finding that applicants had no prescriptive right of private way over the defendant’s land. The defendant sued out a writ of certiorari, which was overruled, and he excepted.
There seems to be some confusion in our decisions upon this point. In Brown v. Marshall, 63 Ga. 657, it was said in the opinion that the remedy is confined to cases of private ways which arise by prescriptive right acquired by seven years or longer user of the way. The issue presented in that case was whether the claimant had a seven years prescriptive right to the use of the private way which was obstructed; and it was adjudged that the applicant, not having enjoyed -the use of the right of way for as much as seven years, was not entitled to have the obstructions removed. It was not necessary to decide whether the remedy was limited to removal of obstructions from a private way based on a
We can see no objection for the claimant of a private way to
Judgment affirmed.