Walker v. Greene , 46 Ga. App. 274 ( 1933 )

Jenkins, P. J.

1. “Before an applicant can have obstructions removed from a private way, he must show not only that there has been an uninterrupted use for more than seven years, but that it is not more than fifteen feet wide, and that he has kept it open and in repair, and that it is the same fifteen feet originally appropriated.” Collier v. Farr, 81 Ga. 749 (7 S. E. 860); Forrester v. McKaig, 144 Ga. 702 (87 S. E. 1060); Nashville, Chattanooga & St. Louis Ry. v. Coats, 133 Ga. 820 (66 S. E. 1085); Hays v. Hays, 23 Ga. App. 689 (99 S. E. 230); Barnett v. Davis, 38 Ga. App. 494, 495 (144 S. E. 330).

2. In the instant case, while there was some testimony from which the ordinary might have been authorized to find that the private way from which obstructions were sought to be removed had been in existence for more than seven years, the plaintiff testified to an acquaintance with it for only six years, and there was no evidence whatever to show that it had been in uninterrupted use for seven years. Moreover, it appears, without dispute, from the testimony of the plaintiff himself that the road liad not been kept in repair, but that there were a number of gullies in it. While the plaintiff testified that the road could “be used,” and, according to the answer of the ordinary, further testified that he had made all repairs necessary for his own use of the road, it does not appear that he had ever'used the roadway except when walking or on horseback, or that he had ever seen more than one or two persons drive over the road in wagons.

Decided January 21, 1933.

3. Since the burden was upon the plaintiff, and he failed to establish his right to have the obstructions removed, within the rule laid down in the first division of the syllabus, the ordinary erred in ordering that the obstructions be removed, and the certiorari should have been sustained.

Judgment reversed.

Stephens and Sutton, JJ., concur. William Bull, for plaintiff in error. Thomas H. Crawford, contra.