Norfolk Southern Railway Co. v. Dempsey , 267 Ga. 241 ( 1996 )

476 S.E.2d 577 (1996) 267 Ga. 241

NORFOLK SOUTHERN RAILWAY CO.
v.
DEMPSEY.

No. S96A1438.

Supreme Court of Georgia.

October 15, 1996. Reconsideration Denied October 31, 1996.

James D. Maddox, Shaw, Maddox, Graham, Monk & Boling, Rome, for Norfolk Southern Ry. Co.

Frank H. Jones, Jones, Byington, Durham & Payne, Rome, for Dempsey.

HUNSTEIN, Justice.

Norfolk Southern Railway Company installed a grade crossing over a section of its track in Floyd County in order to allow Dempsey and his predecessors, who owned the property to the west of Norfolk's track, to gain access to a county road that came to a dead end to the east of the track. It is uncontroverted that the initial use of the crossing was permissive. In the 1980's Dempsey obtained access off his property via a state highway constructed on the other side of the property; Dempsey then built a private road from the state highway access point and connected it with the road that led to the Norfolk grade crossing. In 1996, when Norfolk sought to close the crossing for safety purposes, Dempsey filed a petition to enjoin the closure, asserting that he had acquired a prescriptive right to use the crossing. The trial court granted Dempsey an interlocutory injunction and Norfolk appeals. We affirm.

1. Norfolk contends that as a matter of law Dempsey failed to give it notice of his adverse claim to the grade crossing. It is well established that 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 mere licensee to that of a prescriber. First Christian Church v. Realty Investment Co., 180 Ga. 35(2), 178 S.E. 303 (1934). The evidence before the trial court showed that Norfolk has a 100-foot right of way that extends 50 feet on each side from the center point of the track. Of this right of way, Norfolk alone has maintained and repaired the center 36-foot portion of the grade crossing, that is, the 18 feet on each side from the center point of the track. Dempsey adduced evidence that for over seven years he has maintained and repaired the last 32 feet of the 50-foot portion of Norfolk's right of way that makes up the grade crossing on his side of the track.

Repairs made to a road may serve as notice to the owner that the user's previously permissive use of the road is adverse. Chota, Inc. v. Woodley, 251 Ga. 678, 679-680, 309 S.E.2d 132 (1983). "The gist of the requirement as to repairs is not so much the repairs as the notice which is given by the repairs." First Christian Church, supra at 39, 178 S.E. 303. Given the limited location of Dempsey's repairs combined with Norfolk's exclusive maintenance of the center portion of its right of way, it is a question for the factfinder whether Dempsey's repairs put Norfolk on notice of Dempsey's intent to appropriate the grade crossing as his own. See Eileen B. White & Assoc. v. Gunnells, 263 Ga. 360, 362, 434 S.E.2d 477 (1993). See also Charleston & W. C. Ry. Co. v. Fleming, 118 Ga. 699, 703(3), 45 S.E. 664 (1903) (it is "vitally necessary" for person claiming prescriptive right "to keep in repair that part of the road which crossed [the railroad's] right of way"). Further, because repairs might not serve as notice where they are made under the agreement permitting the use of the road, see Nelson v. Girard, 215 Ga. 518, 519-520(2), 111 S.E.2d 60 (1959), and because an owner's repair and maintenance of a road may indicate the use thereof is permissive, see Rothberg v. Peachtree Investments, 220 Ga. 776(2), 142 S.E.2d 264 (1965), it is also a question for the factfinder whether Dempsey's repairs to his portion of the crossing constituted notice of adverse use or were contained within Dempsey's permissive use of the crossing.

Where, as here, there exist conflicts regarding material issues of fact, this Court will not interfere to control the discretion vested in the trial court in granting an interlocutory injunction. OCGA § 9-5-8; Mayor of Savannah v. Collins, 211 Ga. 191(2), 84 S.E.2d 454 (1954). Accordingly, this enumeration presents no ground for reversal.

2. Norfolk contends the grant of the injunction was error because as a matter of law Dempsey's petition fails, in that the right of way claimed by Dempsey over the grade crossing is 24 feet wide and thus exceeds the statutory maximum width of 20 feet. OCGA § 44-9-40(a). Although evidence adduced at the hearing on the interlocutory injunction reflected that the grade crossing maintained by Norfolk is 24 feet 6 inches wide, Dempsey responded to a question on redirect that "in regard to the right of way that goes across the crossing" his measurement reflected a pathway with a width of only nineteen feet. Thus, contrary to Norfolk's position, a fact issue exists as to the width of the pathway allegedly established by Dempsey, and Norfolk has failed to show an abuse of the trial court's discretion in granting the interlocutory injunction.

Judgment affirmed.

All the Justices concur.