Bowen v. Lewis , 201 Ga. 487 ( 1946 )

1. The provision of the act of the General Assembly creating a Board of County Commissioners for White County, which confers upon them jurisdiction over the removal of obstructions from private ways (Ga. L. 1933, p. 762, sec. 11, par. 3), is not unconstitutional as being in violation of art. 1, sec. 4, par. 1 of the Constitution (Code, Ann. Supp., § 2-401).

2. The applicant for removal of obstructions from an alleged prescriptive private way over the land of another failed to establish the essential requirements to sustain such an application, that is, that he had been in the uninterrupted use of a permanent private way over the land, not exceeding fifteen feet in width, for seven years, and had kept it open and in repair.

No. 15579. OCTOBER 11, 1946. The exception here is to a judgment, denying and overruling the petition for certiorari of the plaintiff in error, by the judge of the superior court, which petition complained of an order by the Board of Commissioners of Roads and Revenues of White County requiring the petitioner to remove certain obstructions from an alleged prescriptive private way over her lands.

The case originated by petition of Ralph Lewis, filed with the Clerk of the Board of Commissioners of Roads and Revenues of White County, which alleged: The defendant, Miss Neela Bowen (now plaintiff in error), is the owner of described lands. The plaintiff (now defendant in error) and others had been in the continued and uninterrupted use of a permanent private way over lands of the defendant, not exceeding 15 feet in width. No legal steps have been taken to prevent the use of the private way, which use has continued for more than 7 years (40 or 50 years). The plaintiff and others have kept the private way in repair. The defendant has obstructed the private way by cutting trees, or having them cut, across the way, by nailing up boards, and putting brush in such way. The plaintiff prayed for an order of removal of the obstructions as provided by law.

A rule nisi was issued and served. The defendant by demurrer attacked the constitutionality of the provision of the act placing jurisdiction in the county commissioners over the removal of obstructions from private ways, as will be more fully shown in the opinion. In her answer the defendant alleged that if such a way had ever existed, it was merely permissive; was not a way of necessity; and was definitely and completely abandoned by all previous users' failing to travel it or keep it in repair for more than 7 years prior to the present proceeding.

At the hearing before the commissioners, an order was entered requiring the defendant to remove obstructions from the alleged private way. A writ of certiorari was sanctioned, and the judgment of the commissioners was set aside and a new hearing ordered. Thereafter the plaintiff amended his original petition, better describing the location of the alleged private way, and further alleging that all of the land on which such way was located had been owned by H. H. Bowen during his lifetime, and that he had conveyed a part of the lands to his daughter, Jane McGee, and her children, and another part to the defendant. It was alleged that the lands conveyed to Jane McGee were later conveyed to named parties, who, themselves and by their tenants, had used such private way until the lands were conveyed to the plaintiff; and that the plaintiff thereafter had used the private way until it was obstructed.

The defendant amended her original pleadings, renewing her attack on the constitutionality of the act, as hereinbefore set forth. After hearing evidence, the commissioners entered judgment requiring the defendant to remove obstructions placed in the way by her. Her application for certiorari was sanctioned, and upon consideration was denied, such judgment being the one excepted to here. 1. The plaintiff in error attacked that part of the act creating the County Board of Commissioners of Roads and Revenues for White County (Ga. L. 1933, p. 762, sec. 11, par. 3), vesting in them jurisdiction in the opening of private ways and removing obstructions therefrom, as being unconstitutional, null, and void, in that there is a general law (Code, § 83-119) under which the ordinaries of this State have jurisdiction over the removal of obstructions from private ways, and that the act conferring such jurisdiction on the Board of Commissioners of White County is a special law, in violation of art. 1, sec. 4, par. 1 of the Constitutions of 1877 and 1945 (Code, Ann. Supp., § 2-401). If the contentions of the plaintiff in error are sound, the judgment of the Board of Commissioners of Roads and Revenues of White County ordering her to remove obstructions from an alleged private way, and the judgment of the superior court affirming such order on certiorari, would be void and of no effect, since the commissioners would be without authority to render such judgment in the first instance.

The Code, § 83-119, is a general law. There is no general law in this State regulating the creation of county commissioners and fixing their jurisdiction, powers, and duties, but all acts creating county commissioners for the various counties of this State are special laws. The Constitution of 1945, art. 1, sec. 4, par. 1 (Code, Ann. Supp., § 2-401), provides: "Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law." The existing general law (§ 83-119) was enacted in 1872, many years prior to the act creating the Board of County Commissioners for White County.

Without more, the plaintiff's contention would appear to be well taken. However, the Constitution of 1945, art. 6, sec. 17, par. 1 (Code, Ann. Supp., § 2-5201), provides: "The General Assembly shall have power to provide for the creation of county commissioners in such counties as may require them, and to define their duties." (See art. 6, sec. 19, par. 1 of the Constitution of 1877.) The Constitution of 1945, art. 11, sec. 1, par. 6 (Code, Ann. Supp., § 2-7806), provides in part: "Whatever tribunal, or officers, may be created by the General Assembly for the transaction of county matters, shall be uniform throughout the State, and of the same name, jurisdiction, and remedies, except that the General Assembly may provide for commissioners of roads and revenues in any county." (See art. 11, sec. 3, par. 1, Constitution of 1877.) The provisions of the Constitution above quoted should, we think, be construed together, and so construed, there is no limitation or restriction upon the General Assembly in the creation of such commissioners by special act.

In Rhodes v. Jernigan, 155 Ga. 528 (117 S.E. 432), it was held: "Under the following decisions of the Supreme Court the General Assembly has the power to pass separate and distinct laws creating county commissioners of roads and revenues for every county in Georgia; and the provisions of general laws enacted bythe legislature do not apply to such officers, unless made so bythe special laws creating them. [Italics ours.] On this issue, see the cases of Pulaski County v. Thompson, 83 Ga. 270 (9 S.E. 265), Sayer v. Brown, 119 Ga. 539 (46 S.E. 649), andSmith v. Duggan, 153 Ga. 463 (112 S.E. 458)." See alsoBradford v. Hammond, 179 Ga. 46 (175 S.E. 18); Robitzsch v. State, 189 Ga. 638 (7 S.E.2d 387); Moore v. Whaley,189 Ga. 647 (7 S.E.2d 394). The cases above cited were based on the Constitution of 1877. As heretofore shown, the provisions of the Constitutions of 1877 and 1945 on the question here involved are substantially the same, and the decisions cited are, therefore, authority for the rulings here made.

The Code, § 23-701 — providing, "The ordinary, when sitting for county purposes, has original and exclusive jurisdiction over the following subject-matters, to wit: . . (3) In establishing, altering, or abolishing all roads, bridges, and ferries, in conformity to law" — is not controlling here. The ordinary sits for county purposes only in those counties where jurisdiction over county matters and county affairs has not been granted by legislative act to a county commissioner or board of county commissioners.

Counsel for the plaintiff in error, in support of his contention that the act placing jurisdiction over the removal of obstructions from private ways in the County Commissioners of White County is unconstitutional, cites Griffin v. Sanborn,127 Ga. 17 (56 S.E. 71), wherein the court was dealing with an act of the General Assembly conferring upon the County Board of Commissioners of Decatur County "all the powers and duties of the ordinary of Decatur County, so far as the same relate to roads, bridges, ferries." By examination of the record in Griffin v.Sanborn, supra, we find that the sole question before the court was whether or not the word "roads" would include "private ways." Nowhere in the record was any constitutional ruling invoked. The language in headnote 3 is obiter. Such language is in conflict with older and later full-bench decisions of this court, and can not be followed here.

The provision of the act of the General Assembly creating a Board of County Commissioners for White County, which confers upon them jurisdiction over the removal of obstructions from private ways (Ga. L. 1933, p. 762, sec. 11, par. 3), is not unconstitutional as being in violation of art. 1, sec. 4, par. 1 of the Constitution (Code, Ann. Supp., § 2-401).

2. The testimony of the plaintiff, Ralph Lewis, and that of his father and other witnesses offered by him, failed to establish at least two essential averments of his petition. Charlie Lewis, the father of the plaintiff, stated that the only time he had any occasion to use the alleged prescriptive way had been within the past five years; and Ralph Lewis testified that he had only known of the alleged prescriptive way for five years. Neither the plaintiff nor his father claimed to have used the way for as much as seven years. The plaintiff testified that the only thing he ever did to the way was to cut some limbs from across it, and his father testified: "It ain't been over two years, I filled up all the holes that needed filling up. I don't think there was any that needed filling up." There was testimony by other witnesses for the plaintiff tending to show that the alleged prescriptive way was over the lands of H. H. Bowen during his lifetime; that Bowen, about the year 1885 or prior thereto, used such way over his lands; and there is testimony that the way has been used on occasions by persons in the community since 1885. There is no testimony that anyone ever did any work upon the alleged prescriptive way; nor is there any testimony showing a dedication of such way by H. H. Bowen to public use, and acceptance by the public. At the time of the hearing before the commissioners, the way had been completely obstructed by trees and brush for some time. The evidence is in conflict as to how long the obstructions had remained therein, but the plaintiff testified that he never did completely remove the obstructions after they first appeared in such way.

"To entitle one to a prescriptive right of way over the land of another, it must appear that the prescriber has been in the uninterrupted use of a permanent road over the land, not exceeding fifteen feet in width, and that he has kept it open and in repair for seven years or more." Elliott v. Adams,173 Ga. 312 (4) (160 S.E. 336). The above ruling has been stated by this court many times. Almost the identical language was used in Short v. Walton, 61 Ga. 28. See also Puryear v.Clements, 53 Ga. 232; Childers v. Holloway, 69 Ga. 758;Woolbright v. Cureton, 76 Ga. 107; Collier v. Farr,81 Ga. 749 (7 S.E. 860); Clark v. Haymans, 110 Ga. 326 (35 S.E. 323); Buchanan v. Parks, 111 Ga. 873 (36 S.E. 947); Rogers v. Wilson, 171 Ga. 803 (156 S.E. 817);Hall v. Browning, 195 Ga. 424 (24 S.E.2d 392).

This case falls squarely within the statement contained inAaron v. Gunnels, 68 Ga. 528, 530, as follows: "So far from the evidence showing that these parties ever worked this 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 passers thereon." The court held that the removal of obstructions was not equivalent to work upon the private way. The evidence of Charlie Lewis, father of the plaintiff, that it had not been two years since he filled up the holes that needed filling up, but he did not think there were any that needed filling up, properly construed, can not be shown as repairs to the private way. But if so construed, it is the only evidence of any work on such way by any person, other than that of his son, that he removed certain brush.

The inference appears from the evidence that the way claimed was used by H. H. Bowen over his own lands during his lifetime, and that use by others originated by permission. The rule as to a prescriptive right being acquired when the use originated by permission of the owner was stated by this court in FirstChristian Church v. Realty Investment Co., 180 Ga. 35 (178 S.E. 303), as follows: "When the use of a private way originates by permission of the owner, prescription does not begin to run until the user notifies the owner, by repairs or otherwise, that he has changed his position from that of a mere licensee to that of a prescriber." Since there is no evidence of notice, by work on such way or otherwise, a prescriptive way is not shown. Particularly is this true when the evidence completely fails to show seven-years' uninterrupted use of such way for any period of time during which the way is alleged to have existed.

Counsel for the defendant in error insist in their briefs and in their argument before this court that — the way being in existence at the time of the division by H. H. Bowen of his lands to his two daughters, Jane McGee and the plaintiff in error — Jane McGee and those holding under her, including the defendant in error, acquired title to the way as an appurtenance passing with the land. This contention is not sound. At the time Bowen conveyed title to his daughters, the alleged prescriptive way was on land owned by Bowen. He could not have had an easement in such way because he owned the title in fee, and his use of such way was a right of use that he had as owner of the land. It was a way over his own land used by him at his own convenience. Under the evidence here, it never existed apart from the land as an easement appurtenant thereto. Had Bowen in his conveyance to his daughter, Neela Bowen, reserved a way over lands conveyed to her for the use of his daughter, Jane McGee, an entirely different case would be presented. No such reservation was made, or attempted, and therefore it follows that Jane McGee and her successors in title did not acquire by deed from H. H. Bowen a way over the lands of Neela Bowen. In this connection see Nugent v. Watkins,124 Ga. 150 (52 S.E. 158).

Judgment reversed. All the Justices concur.