170 Ga. 53 | Ga. | 1930
T. B. Raines and E. W. Hollingsworth brought this action against Lowrey as surviving partner of a firm composed of Lowrey and Davidson, Davidson having died a short time before the filing of the petition. The prayer was for an injunction to prevent the obstruction of what the petitioners alleged to be a public alley in the City of Dawson. It was also alleged that the petitioners had an easement in said alley as a private way. The right to the use of the alley as a public alley, as well as the right to the alley as a private way or easement appurtenant to the lots of the petitioners, were both alleged to be sustained by prescription, whether the use of the land in question is for a public way or a private easement. The petition alleged that the alley or easement was about to be obstructed by the defendant by the erection of a building on the premises, and the petitioners prayed for an injunction restraining the defendant from obstucting in any way the alley or easement, the free and unobstructed use of which was claimed by the petitioners. By amendment the plaintiffs sought to enjoin a- nuisance, alleging that the obstruction of the alleged alley was a nuisance and that the City Council of Dawson had failed to abate this nuisance upon the petition of the plaintiffs presented to the municipal authorities for that purpose. To make a brief statement of the issues, it may be said that the petition is based on the allegations that the piece of land 20 feet and 10 inches wide and 90 feet long, which is the subject of dispute, is a public alley established by dedication or by prescription; that it is a
We shall first deal with the assignments of error based upon the grounds that the verdict is contrary to the evidence and to law. A careful review of the entire brief of evidence convinces us that the jury was fully authorized by the evidence to find in favor of the defendants on every issue involved in the case. It appears that the petitioners bought the two storehouses and the two lots upon which they are situated, fronting on Main Street in the City of Dawson, less than three years ago. These two lots are separated by a space of almost 31 feet fronting -on Main Street, which the plaintiffs contend is by dedication and use an alley or street of the City of Dawson; or, if this piece of land is not a public alley, it is insisted that it is a private way which the plaintiffs are entitled to use as an easement appurtenant to each and both of the storehouse lots above referred to. There was evidence in behalf of the plaintiffs, sufficient perhaps to have sustained a finding sustaining their contention as to the creation of a public alley, and some testimony indicating that their predecessors in title had exercised a -permissive right to a private way over the lot in question fronting on what is known as Main Street in the City of Dawson. However, the plaintiffs in this case, as in all other civil cases, are required to establish their contentions by a preponderance of the evidence as to every essential allegation with reference to those facts necessary to constitute the legal right which they assert. In this case the jury, in exercising their right to pass upon the credibility of testimony,
How stands the case on the issue that the plaintiffs have a right of way or easement over this piece of land nearly 21 feet in width and 90 feet long, which plaintiffs allege is essential to their ingress and egress to the stores described in the petition ? There is testimony in behalf of the plaintiffs that both of the stores, the one used for dry goods, designated “Globe” and the other a store occupied by the Atlantic & Pacific Tea Company, had for a period, the length of which is not stated, had side doors opening upon the parcel of land in controversy, which were used as means of ingress and egress and for loading goods into each of the two buildings. It also appears that the building already referred to which belongs to Mr. Eaines solely has attached to it a stairway extending from the ground to a second story containing the offices of named lawyers, and that this -stairway extends or reaches out into the 20-foot space a distance of three feet. But it appears also from the evidence that the openings leading to the vacant ground as to which there is a dispute have been closed up for several years, and were closed at the time the property was purchased by the present plaintiffs. So the jury had the right to conclude that such use of the premises as was had by the former owners of the property was merely permissive, and therefore could not be the basis of a prescription, or that the use was abandoned as entirely unnecessary after the purchase of the 42-foot strip for street purposes from the defendants Lowrey and Davidson in 1920. Indeed, the jury had the right to believe the testimony of Lowrey, who purchased the property in 1896, and who swore positively that no permission had ever been given to the predecessors in title of the plaintiffs for any use of the property which he and his, partner Davidson had claimed to own since their purchase in 1896. He testified that the partnership was the owner of the land under the deed put in evidence, executed in 1896, and
In the only special ground of the motion for a new trial exception is taken to certain excerpts from the charge of the court, by first quoting something over two pages upon which error is assigned, and thereafter in the same ground assigning error upon certain portions of the charge originally quoted, as well as an additional excerpt, upon various grounds of alleged error set forth in the record. Without going into a full discussion of the form or the propriety in which the subjects contained in these assignments are presented, it is enough to say that after careful consideration it is our opinion that the instructions as a whole are very favorable to the contentions of the plaintiffs; and while there may be some inaccuracies in the charge, they afford no ground of complaint to the plaintiffs, and a new trial would not be authorized based upon the assignments of error contained in this ground of the motion, whether they be considered separately or collectively.
Judgment affirmed.