Howard v. Fleming , 231 Ga. 364 ( 1973 )

231 Ga. 364 (1973) 201 S.E.2d 422

HOWARD et al.
v.
FLEMING.

28321.

Supreme Court of Georgia.

Submitted October 10, 1973. Decided November 8, 1973.

Adams & Adams, W. J. Adams, Jr., for appellants.

Martin, Snow, Grant & Napier, John C. Edwards, for appellee.

NICHOLS, Justice.

Edward and Reba Howard filed a complaint in which they sought to permanently enjoin Corine Land Fleming from closing an alleged private way over her land. The private way was allegedly created by adverse possession, remained open and in continuous use for more than 7 years, and repairs were made as needed. The jury returned a verdict for the defendant and after a motion for judgment non obstante veredicto was overruled, the present appeal was filed. The enumerations of error contend that a finding for the plaintiffs was demanded and that the trial court erred in refusing to give a requested instruction to the jury. Held:

1. Where as in this case the evidence demanded a finding that in order to use the alleged private way it was necessary that repairs be made after each heavy rain, and where the plaintiffs' adverse possession was alleged to be based upon keeping the way open by making such necessary repairs, it was not error to refuse to instruct the jury: "That the requirement of repairs as an element necessary to acquire a prescriptive easement is not so much the repairs themselves as the notice which is given by the repairs." Such requested charge was not applicable to the facts of the case sub judice.

2. Assuming but not deciding that the evidence would have authorized a verdict for the plaintiffs, yet it cannot be said that it demanded such a verdict where much of the evidence adduced for the plaintiffs was contradicted as to material facts. The verdict for the defendant was authorized by the evidence and the trial court did not err in permitting the jury to decide disputed issues of fact and in thereafter overruling the plaintiffs' motion for a judgment non obstante veredicto or for a new trial in the alternative.

Judgment affirmed. All the Justices concur.