Brown v. Marshall

Jackson, Justice.

1. The act of 1872, codified in sections 737, 738, 739, and 740 of the Code, giving the ordinary jurisdiction to try summarily obstructions to private ways, is confined to the cases of private ways which arise by prescriptive right acquired by seven years’ or longer possession or user of the way. Therefore the only question in this case is, did the complainant have such right by prescription, that is, by a seven years’ user of the way ? The evidence shows that he used it as a mere path for some two or more years, and then it was widened into a road; but the road was used only since the fipst of 1873. The superior court was therefore right to overrule the judgment of the ordinary ordering the obstructions to be removed.

We say nothing in regard to what rights the applicant for removal of obstructions might have before a court having jurisdiction of the case either at law or in equity, see Salter vs. Taylor, 55 Ga., 310, which rights might be predicated upon contract with the grantor of the defendant, and defendant’s duty to take notice or be put on inquiry when he bought by seeing a road on the land. Whether by verbal contract he could acquire any right to the private way against a purchaser from the party who contracted with him in parol, until the right ripened into a title by prescription, we do not decide. See Code, §§2235, 720 to 732.

The only point we decide is, that he has no summary remedy before the ordinary to have the obstructions removed under the act of 1872,.unless he had used the road for seven years, and as the Ordinary passed an order to have the obstructions removed when the proof was that the road had not been used seven years, the superior court was right to sustain the certiorari.

We are aware of the act of 1877 which enlarges the jurisdiction of the ordinaries so far as to give them concurrent jurisdiction with county commissioners and other local tribunals; but that act does not affect this case. It simply gives concurrent jurisdiction with local tribunals where the ordinary before had jurisdiction under the act of 1872. See acts of 1877, p. 109.

Judgment affirmed.