Shearin v. Wayne Davis & Co., PC , 281 Ga. 385 ( 2006 )

MELTON, Justice,

dissenting.

While I fully join in Justice Carley’s dissent, I write separately to emphasize that the majority’s reading of OCGA §§ 32-3-3 (c), 44-5-161, and 44-5-163 results in a holding that is contrary to the clear framework that has been created by the three statutes.

Pursuant to OCGA§ 44-5-161 (a),

[i]n order for possession to be the foundation of prescriptive title, it: (1) Must be in the right of the possessor and not of another; (2) Must not have originated in fraud except as provided in Code Section 44-5-162; (3) Must be public, continuous, exclusive, uninterrupted, and peaceable; and (4) Must be accompanied by a claim of right.

This Code section works in conjunction with OCGA § 44-5-163, which provides that “[possession of real property in conformance with the [aforementioned] requirements of Code Section 44-5-161 for a period of 20 years shall confer good title by prescription to the property against everyone except the state and. those persons laboring under the disabilities stated in Code Section 44-5-170.”

OCGA § 32-3-3 (c) adds a seven-year “public use” requirement to the statutory framework regarding prescriptive title. Specifically, before a county can be said to have prescriptive title to a road on private land, the road in question must “come to be a public road by the exercise of unlimited public use for the preceding seven years or more.” Id.; see also Chandler v. Robinson, 269 Ga. 881 (2) (506 SE2d 121) (1998).

Decided November 20, 2006 Reconsideration denied December 15, 2006.

Here, pretermitting the question whether the County acquired prescriptive title prior to the 1970’s,⁶ it is undisputed that there has not been unlimited public use of the road for at least the last seven years as required by OCGA § 32-3-3 (c). Thus, as a matter of law, the County does not have prescriptive title to the land today.

The seven-year public use requirement of OCGA § 32-3-3 (c) was designed to prevent the very situation that the majority has endorsed here, which is to allow a private individual to claim, more than thirty years after a property is no longer in use by the public or maintained by the County, that the County obtained and still has prescriptive title to the property. Indeed, such a long delay makes it virtually impossible to address the critical question of what, if anything, the County did in the past to make “a claim of right” to the land that would have established prescriptive title in the first place. Further, because OCGA § 32-3-3 (c) makes clear that the lack of unlimited public use of the land for at least seven years eliminates any prospect of prescriptive title, it is of no consequence that the County did not formally abandon the property pursuant to OCGA § 32-7-2.

Accordingly, because it has not been established that the County had prescriptive title to the road at issue here, I would reverse the trial court’s issuance of mandamus requiring the County to maintain it.

I am authorized to state that Justice Carley joins in this dissent. Vinson, Talley, Richardson & Cable, Noelani G. Skipper, James J. Phillips, for appellants. Glen E. Stinson, for appellees.

6 Tellingly, the County has not made any present claim to the road at issue here, and it is unclear when, if ever, the County made an express claim to the road in the past that would support an assertion of prescriptive title. See OCGA § 44-5-161 (a) (4) (possession “[m]ust be accompanied by a claim of right” to form basis for prescriptive title); Coleman v. Coleman, 265 Ga. 568 (459 SE2d 166) (1995) (party who did not give actual notice of adverse claim could not establish prescriptive title). To the contrary, appellees are attempting to force prescriptive title onto the County in an effort to make it maintain a trail located on private land. In addition, OCGA§ 32-3-3 (c) was passed in 1973, and if, as appellees contend, the County has done nothing to maintain the road since “the mid 1970’s,” we would stillbe left with the questions (1) whether the County made an express claim to the land prior to the passage of OCGA§ 32-3-3 and (2) even if the County had made an express claim to the land, whether the additional seven-year public use requirement of OCGA§ 32-3-3 would have been met at the time that the statute was passed.