Keng v. Franklin, 267 Ga. 472 ( 480 S.E.2d 25) (1997);Burnum v. Thomas, 71 Ga. App. 690, 692 (2) ( 31 S.E.2d 925) (1944).Georgia Pacific Corp. v. Johns, 204 Ga. App. 594, 595 ( 420 S.E.2d 39) (1992). Here, Jack Montgomery testified that the old roadway was the "same road" he had used for various purposes long before he purchased the property nearby.

Id. at 113 (1). See Ga. Pacific Corp. v. Johns, 204 Ga. App. 594, 595 ( 420 SE2d 39) (1992) ("The gist of the requirement as to repairs is not so much the repairs as the notice which is given by the repairs.") (citation and punctuation omitted; emphasis in original). While Andrews may have presented evidence in support of her claim at the injunction hearing, she failed to file a transcript of those proceedings and did not attempt to reconstruct the proceedings in accordance with OCGA § 5-6-41 (g) and (i).

To prevail on his easement claim, Jackson had to prove four elements: (1) that uninterrupted use of the crossing had continued for seven years or more; (2) that the width of the crossing did not exceed 20 feet; (3) that the width did not deviate from the number of feet originally appropriated; and (4) that Jackson kept the crossing open and in repair for seven uninterrupted years. See OCGA §§ 44-9-1; 44-9-54; 44-9-40(a); Ga. Pacific Corp. v. Johns, 204 Ga. App. 594 ( 420 S.E.2d 39) (1992). The jury decided that Jackson had prescriptive rights to the crossing.

In order for the Stovers to prevail on their petition, they will need to show not only that the Tiptons rendered the dirt road unfit for use, but also establish that they have used the road, constantly and uninterrupted, for seven or more years, that the roadway is the same width as originally appropriated and not more than 20 feet wide, and that they have kept it open and in repair during their period of use. Again, we can discern no reason why, under the circumstances, the Stovers should have been required to raise these issue in the prior boundary dispute when the Tiptons had not taken any legal steps to abolish the alleged easement and only erected physical obstructions after the litigation terminated. See Ga. Pac. Corp. v. Johns, 204 Ga. App. 594 ( 420 S.E.2d 39) (1992). Accordingly, we conclude that the superior court erred in dismissing the de novo appeal based on res judicata.

For purposes of this case, from 1898 until 1973, the grantor of both Latham and Acey had, used, and maintained the "settlement road" across the Atlanta and West Point tracks within the meaning of O.C.G.A. § 44-9-59(a), which constituted a prescriptive interest adverse to the railroad's interest. See O.C.G.A. §§ 44-9-1; 44-9-40; Belcher v. Kelly, 143 Ga. 525 (4) ( 85 S.E. 696) (1915); Holloway v. Birdsong, 139 Ga. 316, 317 ( 77 S.E. 146) (1913); Georgia Pacific Corp. v. Johns, 204 Ga. App. 594 ( 420 S.E.2d 39) (1992); Trednick v. Kramer, 190 Ga. App. 684, 685 ( 379 S.E.2d 633) (1989). Plaintiffs showed that they had constant and uninterrupted use for seven years prior to 1973 on the "settlement road," and from 1973 until 1996 across the new paved road which was maintained for both their benefits by Ply-Marts and Latham by consent of the railroad.

Simmons was required to establish he was in uninterrupted use of the way for seven or more years, the way was not over 20 feet wide, and that he has kept the way open and in repair for at least seven years. Ga. Pacific Corp. v. Johns, 204 Ga. App. 594 ( 420 S.E.2d 39) (1992). If Simmons failed to show all of these requirements, he could not prevail. Eileen B. White Assoc. v. Gunnells, 263 Ga. 360 ( 434 S.E.2d 477) (1993). Because of the stipulation, however, the only factual issue in this case is whether Simmons kept the way open and in repair.

Consequently, we have exercised it. See, e.g., Ga. Pacific Corp. v. Johns, 204 Ga. App. 594 ( 420 S.E.2d 39) (1992); Trednick v. Kramer, 190 Ga. App. 684 ( 379 S.E.2d 633) (1989); O'Neill v. Myers, 148 Ga. App. 749 ( 252 S.E.2d 638) (1979). The underlying issue in such cases is essentially the same as here, i.e., whether the plaintiff has acquired the right to use such private way by prescription.

(Citations and punctuation omitted.) Ga. Pacific Corp. v. Johns , 204 Ga. App. 594, 595, 420 S.E.2d 39 (1992). Mere use of a roadway is not enough to acquire prescriptive rights.

We have held that even where a landowner claimed he did not notice any repairs being made, because “there was testimony to the effect that the repairs were extensive enough to put the owner on notice that others were using the road[,]” the evidence was sufficient to support a prescriptive easement. Ga. Pacific Corp. v. Johns, 204 Ga.App. 594, 594, 420 S.E.2d 39 (1992). Because Griffin does not contest the issue of notice on appeal, we cannot say that the trial court erred.