Opinion
33547.
SUBMITTED MAY 5, 1978.
DECIDED MAY 16, 1978.
Injunction, etc.; summary judgment. Fulton Superior Court. Before Judge Weltner.
Glyndon C. Pruitt, for appellant.
John C. Tyler, for appellee.
This appeal is from a judgment of the Superior Court of Fulton County granting the defendant's motion for summary judgment in the plaintiff's action to remove an obstruction (a fence) from an alleged private way.
The apparent contended basis for jurisdiction of this appeal in this court (there being no jurisdictional statement in the notice of appeal, as required by Code Ann. § 6-802 (Ga. L. 1965, pp. 18, 20; as amended)) is the prayer for the equitable relief of injunction of the threatened future obstruction of the roadway, which is alleged to be a "continuous" nuisance. However, "[o]ur Code, § 83-119, gives a summary remedy for the removal of obstructions across a private way." Campbell v. Deal, 185 Ga. 474, 480 ( 195 S.E. 432) (1938). "If the obstruction of a private way has been completed, the statutory remedy before the ordinary [judge of the probate court now] will afford to the users a full and adequate remedy at law by removal of the obstruction, so that in such a case a petition for injunction will not lie." Hall v. Browning, 195 Ga. 423 (3) ( 24 S.E.2d 392) (1943).
Accordingly, the action is construed as one brought under Code § 83-119, and which involves no equity or other bases of our jurisdiction under Code Ann. § 2-3104 (Art. VI, Sec. II, Par. IV, Ga. Const. of 1976). See Carter v. Kinman, 231 Ga. 759 ( 204 S.E.2d 299) (1974); Putnam v. Sewell, 209 Ga. 28 ( 70 S.E.2d 462) (1952). Therefore, the appeal must be, and is, transferred to the Court of Appeals for a consideration of the remaining issues in the case.
Transferred to the Court of Appeals. All the Justices concur, except Jordan and Bowles, JJ., who dissent.