Nugent v. Watkins , 124 Ga. 150 ( 1905 )

CANDLER, J.

(After making the foregoing statement.) In the able brief of counsel for the defendant in error a distinction is drawn between private rights of way by prescription at common law and under the Georgia statute. It is insisted that at common law a private right of way could be acquired by prescription only by reason of adverse possession accompanied by a claim of right, while under the act of 1872, as codified in the Political Code, §§678 et seq., prescription may ripen through the permissive use of the way for the required seven years; and it is contended that on this account the statutory prescriptive way is personal to the prescriber, and expires with the limitation of his estate. Applied to the case at bar, the contention is, that even if Wilson Watkins had a prescriptive way over the lands of Sarah E. Watkins, it ceased to exist at his death, and that his successor in title could not tack Wilson Watkins’ prescription to her own occupancy of the way so as to set up a prescriptive title in herself. We can not concede the soundness of this position. Granting that the act of 1872 changed the common law in making more liberal provisions for the acquisition of a private way by prescription, we fail utterly to see how it can be said to follow that the prescriptive right, when once acquired as provided by the statute, is any less complete than it would have been if obtained under the more rigid requirements of the common law. Prescription is prescription, whether it be acquired at common law or by statute. The right itself has not been changed, but merely the method of obtaining it. The argument that section 672 of the Political Code, providing that “When a person has laid out a private way, and has been in the nse and enjoyment of it as much as seven years, of which the owners have had six months’ knowledge without moving for damages, his right to use becomes complete, and such owners are barred of damages,” was intended as a check, or balance, against the greater liberality allowed by the act of 1873, is, we think, untenable. A complete answer to it is that the alleged “check” was in existence before the act which it is claimed it was intended to check. This section was carefully construed and fully explained by our present Chief Justice in the ease of Watkins v. Country Club, 130 Ga. 47, wherein it was held that the section in question was intended to apply only to private ways laid out under statutory proceedings, and not to a prescriptive way, such as the one now under consideration. While we recognize that what was there said is not binding in the present ease, for the reason that it was not necessary to the decision rendered, the argument made is entirely convincing, and we are satisfied with the correctness of the conclusion there announced.

It follows, then, that under the allegations of the petition a prescriptive right to the private way in controversy had ripened in Wilson Watkins before his death, and presumably this right passed with the land to the plaintiff; for, as was held in Taylor v. Dyches, 69 Ga. 456, “Private ways are never presumed to be personal when they can be construed to be appurtenant to the land. They are in the nature of covenants running with the land.” See also Duggan v. Cox, 78 Ga. 158; Cunningham v. Elliott, 93 Ga. 160. In this view of the case, it was not necessary, as contended by counsel for the defendant in error, that the petition should allege that the way was laid out by the plaintiff, or that the defendant had six months’ notice that the way was laid out, used, and enjoyed. It follows that the position that it is necessary to set out the nature of the title of all the adjacent landowners, and make them parties to the suit, in order for the plaintiff to assert her right to the way, is untenable. Our conclusion is that the ordinary erred in sustaining the demurrer to the petition, and that the superior court should have sustained the certiorari.

Judgment reversed.

All the Justices concur.