Opinion
35615.
DECIDED MAY 6, 1955.
Opening private way. Before Judge Boykin. Heard Superior Court. January 3, 1955.
Earl Staples, Lamar Knight, for plaintiff in error.
Aubrey W. Gilbert, Shirley C. Boykin, contra.
The evidence did not show an uninterrupted use of the alleged private way for over seven years, or that the way had been kept open and in repair for over seven years; therefore the superior court erred in overruling the certiorari filed by the defendant.
DECIDED MAY 6, 1955.
Eugene D. Jacobs petitioned the Ordinary of Heard County for the removal of obstructions from an alleged private way. The petitioner claimed the establishment of the private way by prescription under Code § 83-112. Upon hearing the evidence the ordinary ordered the removal of the obstructions. On certiorari the Superior Court of Heard County overruled the certiorari of the defendant, and he excepts.
According to the ordinary's answer filed in the certiorari proceedings, the evidence was as follows:
W. C. Hannah testified for the petitioner: that he was born and raised on the farm in question and traveled the road in question many times over the years, and that said road used to run through where Mr. Hannah's barn now stands — in other words, it had to be moved when Mr. Hannah built his barn on the roadway; that he did not know of any work being done on the road; that in the past he had seen the road moved over when the road got rough.
Will Harper testified for the petitioner: that he owned the fifty-acre tract two years before Mr. Jacobs bought the place six years ago; that the road in question was the only road into the place, and that he kept the road in some repair for the two years he owned the place, filled up holes in the road, etc.; that the road in question was about 15 feet in width for its full length; and that the only time he saw it moved was when it had to be moved around Mr. Hannah's barn when Mr. Hannah built a barn on the roadway.
Z. P. Almon testified for the petitioner: that there was only one road to the fifty-acre tract owned by Mr. Jacobs, and that that was the road which ran across Mr. Hannah's field; that Mr. Hannah had plowed up the road in question so it could not be used by him and Mr. Jacobs; that he rented the place two years ago from Mr. Jacobs, but could not get into the place because Mr. Hannah had flooded the road in question so as to make it impassable; that the road was not over 15 feet wide at its widest point; that the road is in the same position it was 20 years ago; that he had been over the road off and on for 20 years; that when he tried to get on the farm over the road in question two years ago, he got stuck because it was flooded by a dam built by Mr. Hannah.
The petitioner testified: that he had owned the fifty-acre tract of land located to the rear of Mr. Hannah's farm for the last six years; that the road in question over Mr. Hannah's field was not over 15 feet wide, and had not been moved since he took over the fifty-acre tract in 1948; that he had kept the road in a state of repair, filling holes, etc.; that he had worked the road in 1950 and had removed a rock dam on the lower side of the road that had been placed there in 1951 by Mr. Hannah; that the rock dam flooded the road in question and made it impassable; that he had rented the place that year to Mr. Almon, but the time he had removed said rock dam it was too late in the year for Mr. Almon to make a crop on the place; that the road in question was the only road into his fifty-acre tract; that Mr. Hannah, O. G. Howard and Mr. Almon had walked down the fence on Mr. Hannah's place to inspect a so-called road that Mr. Hannah was going to let him use after he had plowed up the road in question; that there was in fact no road down along said fence, and that it would have taken about $150 worth of work to make it half-way passable; that Mr. Hannah had later refused to give petitioner a deed to even the road down the fence line of his place; that Mr. Hannah told him that he, Jacobs, could travel along his fence line, but that no one else would be able to use it.
The substance of the defendant's evidence was to the effect that the road had been moved many times and had never been in the same place over a seven-year period; and that the road exceeded 15 feet in width, and had never been kept in repair.
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. Nott v. Tinley, 69 Ga. 766 (1); Burton v. A. W. P. R. Co., supra.
The owner of the land over which an alleged private way runs may interrupt the use of the private way and thereby interrupt the running of a seven-year prescription period. Kirschner v. W. A. R. Co., 67 Ga. 760 (1). The evidence shows that the defendant-owner interrupted the use of the alleged private way in 1951 by building a dam and flooding the road, rendering the road impassable. Therefore, we must see if the petitioner or his predecessors in title had a continuous seven-year period of uninterrupted use prior to the obstructing of the road in 1951. The petitioner acquired the property served by the alleged private way in 1948. Will Harper, a witness for the petitioner, testified that he owned such property for the two years prior to the petitioner's purchase thereof. Assuming that the evidence shows that the use of the alleged private way was uninterrupted during the two years Mr. Harper owned the land served by such way, and that the petitioner's use thereof was uninterrupted from the time of his purchase until the way was obstructed in 1951, such evidence does not show an uninterrupted use for seven years. While there was evidence to show the existence of the road for a number of years, there is no evidence showing that the predecessors in title prior to Mr. Harper's ownership had an uninterrupted use of the road, or that such predecessors in title kept the road open and in repair.
Since the burden of proof was upon the petitioner, and he was required to show a strict compliance with the requirements of the law in establishing a private way by prescription under Code § 83-112, the evidence failed to authorize a finding in favor of the petitioner.
The superior court erred in overruling the certiorari. Perry v. Simpson, 23 Ga. App. 710 ( 99 S.E. 227).
Judgment reversed. Quillian and Nichols, JJ., concur.