Woolbright v. Cureton, 76 Ga. 107; Collier v. Farr, 81 Ga. 749 ( 7 S.E. 860); Aaron v. Gunnels, 68 Ga. 528; Hall v. Browning, 195 Ga. 423, 424 (1) ( 24 S.E.2d 392)." Burton v. Atlanta W. P. R. Co., 206 Ga. 698 (1) ( 58 S.E.2d 424). "Prescription is the right to property which a possessor acquires by reason of the continuance of his possession for a period of time fixed by law.
The use of the private way, if it be one, having originated by permission, and since nothing was done prior to some four years ago to put the defendant owner on notice that any user had changed his position from that of a mere licensee to that of a prescriber, the plaintiff has failed to prove that he, or his predecessors in title, kept it open and in repair for a period of seven years. Burton v. Atlanta West Point R. Co., 206 Ga. 698 ( 58 S.E.2d 424). 2.
A person seeking to have obstructions removed from a private way allegedly established by prescription must prove: (1) uninterrupted use for more than seven years, (2) that it is not more than 15 feet wide, (3) that it is the same fifteen feet originally laid out, and (4) that he has kept it open and in repair. Priest v. DuPree, 60 Ga. App. 149 ( 3 S.E.2d 106); Massee-Felton Lumber Co. v. Weideman, 60 Ga. App. 730 ( 5 S.E.2d 243); Thomas v. Burnum, 69 Ga. App. 37 ( 24 S.E.2d 812); Roach v. Smith, 79 Ga. App. 348 (1) ( 53 S.E.2d 688); Puryear v. Clements, 53 Ga. 232 (1); Maddox v. Willis, 205 Ga. 596 (1) ( 54 S.E.2d 632); Burton v. A. W. P. R. Co., 206 Ga. 698 ( 58 S.E.2d 424). In such a case the burden of proof is on the petitioner ( Hendricks v. Carter, 21 Ga. App. 527, 529 (7), 94 S.E. 807; Goodwin v. Bickers, 22 Ga. App. 13, 14, 95 S.E. 311); and he must bring himself strictly within the requirements of the law.
Harsh as this result may at first appear, it nevertheless is the product of a rule adopted not only in this state, but generally throughout the union. Girard Life Ins. Co. v. Philadelphia, 88 Pa. 393; Appeal of Brumm, 9 Sad. 483 (Pa.) 12 A. 855; Kohler v. Reitz, 46 Pa. Super. 350; Rochester Bldg. Loan Ass'n v. Beaver Valley Water Co., 68 Pa. Super. 122; Atlanta v. Burton, 90 Ga. 486, 16 S.E. 214; East Grand Forks v. Luck, 97 Minn. 373, 107 N.W. 393, 6 L.R.A. (N.S.) 198; State ex rel. Scotillo v. Water Supply Co. etc., 19 N. Mex. 27, 140 P. 1056; Loring v. Commissioner of Public Works, 264 Mass. 460, 163 N.E. 82; Provident Institution, etc. v. Jersey City, 113 U.S. 506, 5 S.Ct. 612, 28 L.Ed. 1102; Dunbar v. New York, 251 U.S. 516, 40 S.Ct. 250, 64 L.Ed. 384. In the Minnesota case just cited, it was held that a statute fixing personal liability for the charges upon the owner of the premises was constitutional, and in several others of the cases it was held that a statute establishing a lien directly against the premises was likewise constitutional.
The general current of authority in other States is in harmony. Atlanta v. Burton, 90 Ga. 486. Ford Motor Co. v. Kearny, 91 N.J. Law, 671. State v. Water Supply Co. 19 N.M. 27, 32, 33. East Grand Forks v. Luck, 97 Minn. 373. Girard Life Ins. Co. v. Philadelphia, 88 Penn. St. 393. Dillon on Mun. Corp. § 1323. The exercise of the police power within its sphere is not narrowed or inhibited by arts. 1, 10, 12 of the Declaration of Rights of the Constitution of this Commonwealth or by the contract clause or the due process clause of the Constitution of the United States; but the question always arises whether the legitimate bounds of the police power have been exceeded in any particular instance.
The rule as we have stated it, which is contrary to the doctrine laid down in the above cases, seems to require nothing more than ordinary good conduct on the part of the owner in the use of his property, to the end that injury to his neighbor may be avoided; and we think it is supported by the current of judicial opinion. Jones v. Ry. Co., 61 S.C. 560; Hanson v. So. Pac. Co. (Calif.), 38 Pac., 957; Taylor v. Canal Co. (Pa.), 57 Am. Rep., 446; Burton v. R.R. Co. (Ga.), 25 S.E., 736; Ry. Co. v. Potter (Kansas), 67 Pac., 534; Davis v. Ry. Co. (Wis.), 17 N.W., 406; Barry v. R.R. Co. (N.Y.), 44 Am. Rep., 377; Swift v. Ry. Co., 123 N.Y., 645; Felton v. Aubrey, 74 Fed., 350; Harriman v. Ry. Co. (Ohio), 12 N.E., 451; Ry. Co. v. McDonald, 152 U.S. 262; Bennett v. R.R. Co., 102 U.S. 577; Lepnick v. Gaddis (Miss.), 26 L.R.A., 686; note, 26 L.R.A., 688; 23 A. E. Ency. Law, 732. The English cases are to the same effect. It is, of course, always a question for the jury to determine whether the way was so plain and so constantly used, with the acquiescence and consent of the owner, as to imply an invitation to the public to enter. It is noteworthy that while in the case of Redigan v. R.R.Co., supra, the Supreme Judicial Court of Massachusetts seemed to take very advanced ground against the doctrine that invitation may be implied from such conditions as are above stated; yet in the case of Chenery v. R.R. Co., 35 N.E., 554, it holds, while long use by the publi
It is held that the premises to which the water is furnished are liable, that indulgence with respect to the time of shutting the water off will not be held to operate against the right to do so, and that the fact that the title has changed hands since the furnishing of the water is immaterial. Girard L. Ins. Co. v. Philadelphia, 88 Pa. 393; Appeal of Brumm (Pa.) 12 Atl. 855; Atlanta v. Burton, 90 Ga. 486, 16 S. E. 214. I will advise a decree sustaining the demurrer in this cause, with costs.