Powell v. Amoss

Bleckley, Chief Justice.

We see in the record no trace whatever of title by purchase, to the private way in dispute, and no very distinct indication of title by prescription. If the case rested on these elements alone, we should be disposed to think that the ordinary’s decision was correct, and that the superior court erred in overruling that decision. But the code, §732, declares that, “When a road has been used as a private way for as much as one year, an owner of land over which it passes cannot close it up without first giving the common users of the way thirty days’ notice in writing, that they may take steps to have it made permanent.” The evidence is clear that this private way was used by the petitioner, Mrs. Amoss, for a long period — much more than one year before it was obstructed by Mr. Powell. There is no hint that he gave her any notice of his intention to close or obstruct the way before placing the obstruction complained of. If the notice required by the statute ought to have been given, the duty of giving it was upon him, and the burden, also, of proving that it was given. Under these circumstauces, we cannot hold that the superior court erred in sustaining the certiorari and remanding the controversy to the ordinary for a new hearing.

Judgment affirmed.