Kirkland v. Pitman , 122 Ga. 256 ( 1904 )

Lamar, J.

(After stating the foregoing facts.) 1. Possession must be adverse in order to form the basis for prescription. A notable exception exists, however, in the case of private ways. The use may originate in. permission, and yet -may ripen by prescription. Everedge v. Alexander, 75 Ga. 859 (4); Pol. Code, § 678. When a way once begins to be traveled by the people of a neighborhood, they adjust themselves thereto. Land is bought, farms are opened, and houses are built on the faith that such property can be reached over, the existing road. The longer the owner remains inactive the greater will be the inconvenience. The code therefore requires him to act promptly. It recognizes that those who travel over the route may acquire an inchoate right before they secure a perfect title. So that even incomplete and partial prescription will prevent the owner from obstructing a private way which has been used for twelve mouths, unless he first gives thirty days notice of his intention in writing to the users.' There was no evidence of such notice having been given in this case. Por that reason the court did not err in overruling the certiorari, which complained of the judgment requiring the obstruction to be removed. Powell v. Amoss, 85 Ga. 273; Pol. Code, § 673.

2, 3. The Political Code, § 662, defines the width of a private way which could belaid out by the ordinary and title acquired by condemnation. The act of 1872 (Pol. Code, § 678) related to ways title to which was acquired by seven years use. As an original question, much might be said in favor of the proposition that prescription gave title to whatever was used for seven years. But while the act of 1872 is silent as to the width of the way, or as to any- conditions upon which it is to be acquired except that of seven years use, yet it has been held that it is not to exceed fifteen feet in width; and it has also been held that in order to acquire full prescriptive title to a private way, those using it must keep it in repair. They can not take advantage of their own default, and acquire a right to a greater width by turning out to avoid an obstacle which they themselves should have removed. But where those parts of the road which exceed the fifteen feet existed when the owner of the land laid out the way, the ease is not within the principle of those decisions, which were intended to prevent encroachment upon the adjoining land. The permissive use does not prevent the acquisition of the prescriptive title, and the fact that the few wide places were used with the consent of the landowner does not destroy its character as a private way. Whether, therefore, the ordinary has concurrent jurisdiction of the removal of obstructions from “roads” as declared in the Civil Code, §4239 (Holmes v. Jones, 80 Ga. 659; Duggan v. Cox, 78 Ga. 160), or whether it is limited to “private ways” (Brown v. Marshall, 63 Ga 657, 659), the road here was of such a character as to authorize the removal of the obstructions in the manner defined in the Political Code, § 679. There is nothing to show that these few wide places were the result of encroachments by those who passed over the route. It does not appear when they were made, and it does appear that the owner consented that the existing private way might be used by the neighborhood. There was also evidence that the bushes and palmetto' have never been cut down for more than fifteen feet.

4. Whether the road was kept in repair was a matter about which the evidence was in conflict. The testimony of some of the witnesses for the petitioners was to the effect that they had worked it, and that the defect in the way was due to heavy hauling of timber by the defendant. On the other hand the testimony in his behalf went to show that the timber was not hauled by him, but by a member of the public who had purchased the lumber and was hauling it over this private road. The record is silent as to the date of these defects, and the statute is silent as to what would be the effect of a failure to keep the way in repair after a prescriptive title had been acquired by seven years use. Tbe duty to repair, no doubt, continues; but on principle it would seem that when the title vested, it could not be divested by neglect, but only by abandonment. Civil Code, §§ 3068, 359,1. There is evidence that the road had been worked by those who used it. There is a conflict as to the length of time it had been in use, but' evidence to warrant a finding, that it had been used much longer than seven years. While the date when it became out of repair is not given, from the general drift of the testimony it would seem to have been caused by recent hauling.

5. On the authority of the Civil Code, § 3065, and Watkins v. Country Club, 120 Ga. 45, the plaintiff in error insists that the petition should have .averred and the evidence should have established that the land through which the road ran was improved. In that case there was a special demurrer. In this case the demurrer did not raise the question. Indeed the petition on its face showed that the way had been given by the landowner, and from the evidence it further appeared that at least a part of the road ran through fields, the effect of which would be to show that even the adjoining woodland could not be. treated as wild land. Compare Southern Bank v. Wilcox, 119 Ga. 519.

6. The description of the road in the petition would not have been sufficient if this had been a proceeding to lay out or to establish a new way; but it was sufficient to identify one existing and obstructed. There was no error in overruling the demurrer.

7. In view of the failure to give the written notice, and the other facts as they appear in the record, and considering the conflict in the testimony, we can not say that the court erred in refusing to sustain the certiorari; and the judgment is

Affirmed.

All the Justices concur.