Wilson v. Smith , 74 Ga. App. 251 ( 1946 )

The requirement that an applicant for the removal of an obstruction to a private way must show adverse user for seven years by evidence of his keeping the way open and in repair by making repairs during the seven-year period applies whether the use of the way originated by permission of the owner or not. Under the evidence in this case no such evidence of repairs appeared, and the ordinary erred in ordering the obstruction removed.

DECIDED SEPTEMBER 21, 1946. Mose Smith filed an application to have removed obstructions from an alleged private way with the Ordinary of Brooks County on the sole ground that the applicant had acquired a prescriptive right to use it. On the hearing there was uncontradicted evidence that the way had been open and in use for twenty-five years and that the applicant had used it for eighteen years. All the witnesses except the applicant swore generally that the alleged way was kept open and in repair but on cross-examination swore that they had never seen any evidence of repairs, and that the way was just two ruts. The applicant testified that he had filled in a hole in the way in October, 1945, and that this was the only time that he had repaired it. The obstruction complained of was erected in November, 1945. The appellants here except to the overruling of their certiorari, which assigned error on the overruling of their motion for a nonsuit and the order of the ordinary requiring the removal of the obstruction. The defendant in error contends that where the use of a private way does not originate by permission of the owner, mere use for seven years will suffice and that it is not necessary to prove that the applicant has kept the way open and in repair for seven years. We have examined every case we could find on the subject and we have been unable to find any support for the contention of defendant in error. As we understand the decisions, whether the use of the way originates by permission of the owner or the prescriptive right is based on mere use and tacit permission or failure to object on the part of the owner, the applicant must prove that he has kept the way open and has repaired it over a seven-year period sufficiently to put the owner on notice that the applicant claims the right to use the way adversely to the owner where he bases his claim on such notice. In this case the evidence shows only one instance of repair and that at the end of the seven-year period. It was error to require the removal of the obstruction under the pleadings and evidence. Hall v. Browning, 195 Ga. 423 (24 S.E.2d 392);Johnson v. Sams, 136 Ga. 448 (71 S.E. 891);Massee-Felton Lumber Co. v. Weideman, 60 Ga. App. 730 (5 S.E.2d 243); Scarboro v. Edenfield, 58 Ga. App. 619 (199 S.E. 325); Burnum v. Thomas, 71 Ga. App. 690 (31 S.E.2d 925); Rogers v. Wilson, 171 Ga. 802 (156 S.E. 817); FirstChristian Church v. Realty Investment Co., 180 Ga. 35 (178 S.E. 303); Miller v. Slater, 182 Ga. 552 (186 S.E. 413);Thomas v. Burnum, 69 Ga. App. 37 (24 S.E.2d 812);Kirkland v. Pitman, 122 Ga. 256 (50 S.E. 117); Nashvillec. Ry. v. Coats, 133 Ga. 820 (66 S.E. 1085); Short v.Walton, 61 Ga. 29; Aaron v. Gunnels, 68 Ga. 528; Nott v. Tinley, 69 Ga. 766; Collier v. Farr, 81 Ga. 749 (7 S.E. 860); Charleston c. Ry. Co. v. Fleming, 118 Ga. 699

(45 S.E. 664); Holloway v. Birdsong, 139 Ga. 316 (77 S.E. 146); Cook v. Gammon, 93 Ga. 298 (20 S.E. 332). If the ruling in Hardin v. Snow, 201 Ga. 58 (38 S.E.2d 836), decided July 3, 1946, is contrary to what is here ruled, this court is bound by the older decisions of the Supreme Court. As indicated above, this was not a proceeding to remove the obstruction on the ground that the applicant had used the way for as much as one year and that the landowner had closed it without giving thirty days' written notice of his intention to do so.Ford v. Waters, 27 Ga. App. 83 (107 S.E. 351), and there is in this case no evidence of any claim of an adverse right other than that of the one repair.

Judgment reversed. Sutton, P. J., and Parker, J., concur.