Opinion
22874.
ARGUED MARCH 9, 1965.
DECIDED APRIL 8, 1965.
Injunction, etc. Fulton Superior Court. Before Judge Pharr.
Ware, Sterne Griffin, Robert F. Lyle, for plaintiff in error.
Fine Rolader, Joseph J. Fine, contra.
1. The petition did not set out a cause of action based upon a prescriptive right acquired in a private way prior to 1953.
2. The petition did not set out a cause of action based upon a prescriptive right acquired in a private way subsequent to 1953.
ARGUED MARCH 9, 1965 — DECIDED APRIL 8, 1965.
The question in the instant case involves whether the plaintiff has obtained a prescriptive right to use a passageway so that he might restrain the defendant from closing it. The petition was brought on two counts. Count 1 attempts to set out a prescriptive right based on more than 7 years adverse appropriation, while count 2 attempts to set out a cause based on prescription for more than 20 years. Except for this and other minor differences, the counts are identical and hence we will set out the essential averments of count 1.
The petition as rewritten alleged: that the plaintiff has been the owner of property known as the Tower Theatre Building for over 20 years; that the defendant corporation owns property south of the plaintiff; that for over 7 years (20 years in count 2) ingress and egress has been made over vacant property owned by the defendant fronting on Linden Street; that for more than 7 years (20 years in count 2) the plaintiff had uninterrupted and constant use of a private way which has not exceeded 15 to 20 feet in width over the defendant's improved land from Linden Street to the plaintiff's property; that it was unnecessary for the plaintiff to keep the way open and in repair because no repairs were needed and because the "owners of said property containing the passageway have themselves kept open that portion of their property where said private way is located"; that the plaintiff has used the same width passageway as originally appropriated; that the defendant notified the plaintiff and his tenant of an intention to construct a fence across the way; that such denial of ingress and egress will cause irreparable injury.
The petition set out a description of the plaintiff's and the defendant's lands and of the passageway. It then alleged: that the defendant had notice the plaintiff's "right" to the passageway was adverse because the plaintiff and his tenants continuously used the passageway by driving over it an average of 10 times per week, by using it as the only means for moving equipment to and from the stage doors of the theater and because the way was the only egress from the fire exit doors on the south side of the Tower Theatre which patrons would have to use in event of emergency; that for more than 7 years (20 years in count 2) no one has taken legal steps to abolish the plaintiff's private way.
The defendant demurred both generally and specially to the petition. The trial judge sustained several grounds of special demurrer to a portion of the petition which is omitted from this statement of facts. To meet those grounds of special demurrer, by amendment such part was stricken and it was alleged: that the passageway, which does not exceed 15 feet in width, is the same as that which plaintiff's predecessor in title obtained as a prescriptive easement; that such predecessor had constant and uninterrupted use from 1926 for more than 7 years; that, in 1926, what is now the plaintiff's property was leased to one Erlanger and the passageway was then used by "employees, supplier, stagehands, performers and patrons of the Erlanger Theatre"; that custodial employees of the theater used the way daily and kept it open and in repair for a period in excess of 7 years; that the previous owner as well as the employees kept the way open for a passageway from the fire doors; that the way was appropriated by the plaintiff's predecessor in title and others because the use of the way was required; that, in 1926, the then owner of the defendant's property did not make repairs to or keep the passageway open; that when the plaintiff acquired his property a prescriptive title to the easement had ripened and "constituted a benefit appurtenant to the land in the nature of a covenant running in favor of petitioner's land and a burden upon the land of the said defendant."
The petition prayed that the defendant be enjoined from erecting a fence and denying access to the plaintiff's property.
The defendant renewed its demurrers and filed additional general and special demurrers to the petition as amended. The trial judge then sustained general demurrers to the petition and both counts thereof. The plaintiff excepted and brings the case to this court for review.
1. To sustain a suit to enjoin the obstruction of an alleged private way, "the right to which is based upon prescription by seven years user, it is essential that the applicant show not only that he has been in the uninterrupted use thereof for seven years or more, that it does not exceed fifteen [now 20] feet in width, and that it is the same fifteen feet originally appropriated, but that he has kept it open and in repair during such period." Maddox v. Willis, 205 Ga. 596 (1) ( 54 S.E.2d 632), and cases therein cited. "If the prescriber fails to show any of these elements necessary to establish prescriptive title, he cannot recover." Ridley v. Griffeth, 216 Ga. 167, 169 ( 115 S.E.2d 336).
The plaintiff in his amendment attempted to set out that an easement to use the way had been previously acquired (in 1926) by prescription. Although the basis of this assertion was that this right was acquired by a predecessor in title, and there are general averments to this effect, the specific allegations did no more than relate that certain employees of a tenant and third parties used the way and kept it open and in repair. "It is a well settled rule of construction that where both general and specific allegations are made regarding the same subject matter, the latter will control." Green v. Perryman, 186 Ga. 239, 247 ( 197 S.E. 880). Thus, the rule is applicable: "An independent adverse use by a tenant of an alleged private way over the land of another, not purporting to be covered by the terms of the lease or based upon any authorization purporting to be conferred by the landlord, does not inure to the benefit of the landlord." Olsen v. Noble, 209 Ga. 899 (1) ( 76 S.E.2d 775).
The averments of the petition fail to show that a predecessor in title of the plaintiff acquired such prescriptive right as could be passed on to the plaintiff.
The petition also fails to allege a meritorious cause for prescription based on 20 years adverse use, as well as for a pre-existing right. At one place in the petition it alleged that the plaintiff has had uninterrupted and constant use of a way which has not exceeded 15 to 20 feet, while in another paragraph, within the same count, the allegation is that the passageway does not exceed 15 feet in width. Such allegations are conflicting and contradictory, or, to say the least, ambiguous. Clearly, the first allegation is that the terminus of the passageway's width is in excess of 15 feet, while the second allegation limits the width claimed to 15 feet. "On demurrer, pleadings are construed most strongly against the pleader, and if an inference unfavorable to the party claiming a right may be fairly drawn from them, such inference will prevail." Norman v. Nash, 102 Ga. App. 508 (2) ( 116 S.E.2d 624); Hogan v. Cowart, 182 Ga. 145 (1 b, c) ( 184 S.E. 884); Doyal v. Russell, 183 Ga. 518 (3) ( 189 S.E. 32); Frazier v. Southern R. Co., 200 Ga. 590, 597 ( 37 S.E.2d 774). Hence, we construe the plaintiff's allegations to mean he claims a passageway in excess of 15 feet but not more than 20 feet. The Act of 1953, Ga. L. 1953, Nov. Sess., p. 98, amending Code § 83-102, provided that a private way should not exceed 20 feet in width. Prior to 1953 the width of a private way sought to be claimed by prescription could not exceed 15 feet in width. Code of 1910, § 808; Code of 1933, § 83-102; Aaron v. Gunnels, 68 Ga. 528. Hence, count 2 and all of that portion of count 1 relating to events prior to 1953 show a fatal deficiency since a prescriptive claim of a private way in excess of 15 feet would be barred.
Another objection to the cause the plaintiff endeavors to plead as regards a 20 year prescriptive period and as do an adverse claim in 1926 which ripened into a right is that, despite the allegations that the same width as appropriated originally is now claimed, the two specific allegations — one alleging a way of 15 to 20 feet and the other alleging 15 feet — show exactly to the contrary. Therefore the petition shows a variance between the width of the way claimed and that originally appropriated.
2. We are left to consider whether the allegations establish a prescriptive right to which the plaintiff is entitled since 1953. Again, we test the allegations against the requirements described at the beginning of the opinion. The plaintiff, claiming in his own right, attempts to avoid the necessity for showing he kept the way open and in repair by alleging that no repairs were needed and that the owner of the property where the private way was situated kept it open. In our view, such facts tend more towards asserting a permissive use than one adverse to that of the defendant.
This court has held: "In order for one to take or keep another's land as a road for his private use, he should be compelled to keep it open and in repair. Keeping it open and working it would be the best evidence of his intention to appropriate it for a road, and would put the owner upon notice that he did intend to appropriate it." Collier v. Farr, 81 Ga. 749, 753 ( 7 S.E. 860). Without deciding whether allegations of repairs are essential where none were needed (see Hardin v. Snow, 201 Ga. 58, 38 S.E.2d 836), we adhere to the settled doctrine that prescription requires notice to the opposite party of the adverse claim. As pointed out in First Christian Church v. Realty Investment Co., 180 Ga. 35, 39 ( 178 S.E. 303): "The essence of the right claimed by the plaintiff to the use of the driveway is prescription; and it is fundamental that prescription is to be strictly construed, and that the prescriber must give some notice, actual or constructive, to him against whom he intends to prescribe. The gist of the requirement as to repairs is not so much the repairs as the notice which is given by the repairs." Nelson v. Girard, 215 Ga. 518, 519-20 ( 111 S.E.2d 60). Moreover, "use alone is insufficient to acquire prescriptive title." Cox v. Zucker, 214 Ga. 44, 52 ( 102 S.E.2d 580).
The petition showing use of the passageway as the only notice given to the defendant, it failed utterly to assert facts indicating the defendant was apprized of the plaintiff's adverse claim. In such circumstances, the trial judge did not err in sustaining the demurrers and in dismissing the petition. Cook v. Gammon, 93 Ga. 298 ( 20 S.E. 332); Miller v. Slater, 182 Ga. 552, 557 ( 186 S.E. 413); Nassar v. Salter, 213 Ga. 253, 255 ( 98 S.E.2d 557).
Judgment affirmed. All the Justices concur.