133 Ga. 820 | Ga. | 1910
The defendant in error brought suit against the railway conqpany to recover damages alleged to have been sustained in consequence of the wrongful and tortious closing up of a private way which led across the railroad company’s right of way. It appears from the petition and the amendments thereto that the plaintiff in his pleadings based his cause of action upon the fact that the road alleged to have been wrongfully closed up was a private way by prescription, having been used continuously for over seven years; and it was also alleged that the plaintiff had used' the way for more than one year. The jury returned a verdict for the plaintiff. The defendant filed a motion for a new trial, and excepted to the court’s judgment overruling the motion.
An examination of the evidence shows that the plaintiff failed entirely to establish the fact that the way which the defendant company had obstructed was a prescriptive right of way. In the case of Short v. Walton, 61 Ga. 28, it was decided, that, "to acquire a prescriptive right to a private way over land, it is necessary to-show the uninterrupted use of a permanent way, not over fifteen feet wide, kept open and in repair for seven years. It is not sufficient to show that those claiming the prescription have been accustomed for more than seven years to pass over the land, changing the way as they saw fit, to avoid obstructions or for convenience.” And in the case of Aaron v. Gunnels, 68 Ga. 528, this ruling was reaffirmed, the court saying: "So far from the evidence showing that these parties ever worked this [road] or kept it in repair, it shows that it has never been worked by anybody, and that nothing has ever been done to it except the pulling out of the way any bush or other thing which .by chance happened to fall into it, by the
In view of this evidence it is also clear that no wrongful act was shown upon the part of the defendant company as against the defendant in error, violative of any rights that he may have acquired under the provisions of the Political Code, §673, even if for a violation of those provisions a party may be held liable in a suit for damages by the “common users” of the road.
The plaintiff’s petition stated a cause of action good as against a general demurrer, and the defects pointed out in the special demurrer were sufficiently met by amendment.
Judgment reversed.