Hagins v. Simmons , 142 Ga. 587 ( 1914 )

Evans, P. J.

(After stating the foregoing facts.) It will be observed from the foregoing statement that the plaintiffs claimed a right of approach to a public road of the county, partly over a prescriptive private way and partly over the old five-chop public road, which, it was contended, had been informally discontinued by the county authorities. The defendants in the court below contended that the plaintiffs, after having had that part of the old five-chop road (which the county authorities undertook to abandon by a slight alteration) adjudicated as a private way, in a proceeding to which the plaintiffs in the present case were parties, and having obtained an order causing a removal of the obstructions placed thereon, are estopped from asserting in this proceeding that such portion of the way as is coincident with the old five-chop road is to be regarded as a public road. We think this contention is sound. The court of ordinary was without jurisdiction to order a removal of obstructions from a public highway; and when the plaintiffs went into that forum and distinctly alleged that the road which had been informally abandoned by the authorities of the county was a private way, and obtained an adjudication as such, and rights under that adjudication, they will be estopped from mending their hold and instituting a second proceeding in a different forum, based upon an entirely different theory.

Judgment reversed.

All the Justices concur.