87 Ga. 320 | Ga. | 1891
In the case of Craven v. Rose, 3 Rich. 72, the Supreme Court of South Carolina went so far as to hold that where proprietors of adjoining lots contribute strips of land to form a lane common for the use of both, and one, after he has acquired a right of way by prescription over the other’s strip, puts an obstruction on his own strip, even that does not destroy his right of way over the other’s land. In Townsend v. Bissell et al., 4 Hun, 297, the doctrine was recognized that successors in title derive from their grantors all their rights to the use of a way established by agreement between coterminous proprietors, and it was held therein that “When the owners of adjoining lots made a way between them, each setting off an equal portion of land for that purpose, and they and their grantees continue to use it in common as a way.for a period of twenty years, the inference is that such use was under a claim of right and adverse.” The same case is reported in 6 N. Y. Supreme Court Reps. 565.
If the lane in controversy in the present ease had never been used for any purpose except as a way for cattle, no right of prescription to it as a general way could have arisen : but as it was not confined to the use originally intended, and for more than seven years had been used by the owners of the adjoining lots, their tenants and other persons, as a general way, we are of the opinion that §731 of the code is applicable. The general use of this land, as stated, was practically a denial that it was only a way for cattle, and an assertion of a right to use it for other purposes, and, therefore, such general use grew into a prescriptive right. In answer to the argument that, under §728 of the code,' providing for the opening of a private way by agreement among land-owners, no right of way could