Opinion
44126.
SUBMITTED JANUARY 8, 1969.
DECIDED JULY 10, 1969.
Removal of obstruction. Chatham Superior Court. Before Judge Harrison. Edwin Jordan filed this proceeding against Harvey and Annie Ridgdill to remove an obstruction from a private way under the provisions of Code § 83-119.
Joseph B. Bergen, for appellant.
John R. Calhoun, for appellees.
To sustain an application for the removal of an obstruction from a private way based upon the landowner's failure to give the notice prescribed by Code § 83-114, it is essential that the applicant show that the way claimed has not varied from the location originally appropriated.
SUBMITTED JANUARY 8, 1969 — DECIDED JULY 10, 1969.
In 1960 defendants owned an improved tract of land approximately two and one-half acres in size and rectangular in shape, bounded on the west by a public road in Chatham County. Defendants' dwelling house was located in the southwest corner of the tract. An unpaved road ran through the middle from the public road to the opposite side. In August 1960 defendants conveyed to plaintiff a house and lot, ninety by one hundred fifty feet, described only by courses and distances, in the northwest corner of the tract. In 1961 the remaining portion of the tract was surveyed and divided into four parcels. The plat made of the survey delineated a road named Ridgdill Street, 20 feet wide, which bounded plaintiff's residence property on the south and ran straight from the public road to the opposite side of the tract, providing access to the parcels in the rear. In March, 1961, defendants conveyed the parcel in the southeast corner of the tract, including a dwelling house, to Joseph and Joan Jones. The deed to the Joneses referred to the plat and described the parcel as being bounded on the north by Ridgdill Street.
As shown on the plat Ridgdill Street was located entirely on defendant's land. The road as it existed in actual use was not straight, as it appeared on the plat, but was crooked and overlapped the south line of plaintiff's property. According to plaintiff's testimony travel on the road crossed his property line as much as ten feet at the southwest corner.
Plaintiff and his family used the road over a period of several years for access to his back yard and to visit the Joneses, who lived back of the plaintiff and diagonally across the road. The road was used also by service trucks in furnishing utilities and other services through plaintiff's back yard.
On several occasions plaintiff complained to defendants that the road overlapped his property line and demanded that the road be relocated south of the line. In response to those demands defendants erected a fence in the roadway along the full distance of plaintiff's property line, thus relocating the road as it appeared on the plat. The fence blocked plaintiff's direct access to the road from his property.
Plaintiff then filed a petition to the ordinary in 1964, seeking to have the fence removed. The ordinary granted an order directing defendants to remove the obstruction, and defendants filed an appeal to the superior court. Plaintiff appealed to this court from the decision of the superior court denying his motion for summary judgment.
The applicant contends that he acquired a road easement running along his south property line because defendants induced him to purchase the property by representing that it was bounded by a twenty-foot street. This claim has no merit. Those preliminary negotiations were merged into the subsequent deed, and the rights of the parties upon the conveyance must be determined with reference to the description contained in the deed. See Taylor v. Board of Trustees, 185 Ga. 61 (1) ( 194 S.E. 169). The deed, which described the property by courses and distances, made no reference to Ridgdill Street or to any plat showing the street and contained no express grant of a road easement. Its unambiguous terms cannot be varied by parol. Code § 38-501.
Likewise there is no merit in plaintiff's contention that he acquired a right of way in Ridgdill Street because defendants later conveyed a parcel to the Joneses with reference to the subdivision plat. In this connection see Tietjen v. Meldrim, 169 Ga. 678, 698 ( 151 S.E. 349). That conveyance created rights in the Joneses but obviously not in plaintiff, who purchased prior to the subdivision.
Plaintiff based his petition partly on Code § 83-114, which declares that "When a road has been used as a private way for as much as one year, an owner of land over which it passes may not close it up without first giving the common users of the way 30 days' notice in writing, that they may take steps to have it made permanent."
The summary remedy by petition to the ordinary for the removal of an obstruction from a private way is applicable alike to prescriptive ways and to private ways used for as much as one year where the landowner fails to give 30 days' notice. Ford v. Waters, 27 Ga. App. 83 (1) ( 107 S.E. 351). In order to give one who has used the road for a year the right to the prescribed notice, it is not necessary that the way should have been actually established as a private way according to the provisions of Code Ch. 83-1. Id. Also, the right defined in Code § 83-114 does not require such use as could ultimately result in prescription. Barnes v. Holcomb, 35 Ga. App. 713, 719 ( 134 S.E. 628). However, we think the use required by Code § 83-114 must resemble a prescriptive use in at least one respect: The way claimed must not vary from the location originally appropriated. See for example, Follendore v. Thomas, 93 Ga. 300 ( 20 S.E. 329); Maddox v. Willis, 205 Ga. 596 (1) ( 54 S.E.2d 632).
Plaintiff sought to remove an obstruction from Ridgdill Street, a private way lying entirely outside his own property. However, the way actually used for more than a year was not the same as Ridgdill Street but overlapped plaintiff's property line. The evidence was clear that the way was relocated as a result of plaintiff's demands and that he had not used the way as relocated, for as much as one year with direct access from his own property.
The statutory proceeding for the summary removal of obstructions placed by a landowner in a private way used by others contemplates merely the removal of obstructions from existing private ways and has no reference to taking the property of the landowner. Porter v. Foster, 146 Ga. 154 (2) ( 90 S.E. 967). A judgment for plaintiff directing the removal of an obstruction from the new or relocated way would amount to condemnation, however temporary, of defendants' property. This is not allowed under Code § 83-119.
The denial of plaintiff's motion for summary judgment was not error.
Judgment affirmed. Eberhardt and Deen, JJ., concur.