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.
It was error to require the removal of the obstruction under the pleadings and evidence. Hall v. Browning, 195 Ga. 423 ( 24 S.E.2d 392); Johnson v. Sams, 136 Ga. 448 ( 71 S.E. 891); Massee-Felton Lumber Co. v. Weideman, 60 Ga. App. 730 ( 5 S.E.2d 243); Scarboro v. Edenfield, 58 Ga. App. 619 ( 199 S.E. 325); Burnum v. Thomas, 71 Ga. App. 690 ( 31 S.E.2d 925); Rogers v. Wilson, 171 Ga. 802 ( 156 S.E. 817); First Christian Church v. Realty Investment Co., 180 Ga. 35 ( 178 S.E. 303); Miller v. Slater, 182 Ga. 552 ( 186 S.E. 413); Thomas v. Burnum, 69 Ga. App. 37 ( 24 S.E.2d 812); Kirkland v. Pitman, 122 Ga. 256 ( 50 S.E. 117); Nashville c. Ry. v. Coats, 133 Ga. 820 ( 66 S.E. 1085); Short v. Walton, 61 Ga. 29; Aaron v. Gunnels, 68 Ga. 528; Nott v. Tinley, 69 Ga. 766; Collier v. Farr, 81 Ga. 749 ( 7 S.E. 860); Charleston c. Ry. Co. v. Fleming, 118 Ga. 699 (45 S.E. 664); Holloway v. Birdsong, 139 Ga. 316 ( 77 S.E. 146); Cook v. Gammon, 93 Ga. 298 ( 20 S.E. 332). If the ruling in Hardin v. Snow, 201 Ga. 58 ( 38 S.E.2d 836), decided July 3, 1946, is contrary to what is here ruled, this court is bound by the older decisions of the Supreme Court. As indicated above, this was not a proceeding to remove the obstruction on the ground that the applicant had used the way for as much as one year and that the landowner had closed it without giving thirty days' written notice of his intention to do so.
When the case was here before it was held that the petition failed to set out a cause of action, in that it was not affirmatively alleged therein that the petitioner had kept the private way open and in repair for a period of seven years or longer, and the judgment of the lower court was reversed. Thomas v. Burnum, 69 Ga. App. 37 ( 24 S.E.2d 812). The plaintiff then amended the petition by alleging: "Petitioner shows that said private way above described has been in constant and uninterrupted use over improved lands, continuously and uninterruptedly, for a period of more than seven years, immediately prior to placing of the obstruction thereon by the defendant as described in paragraph 5 of the petition; that during said period of time no legal steps have been taken to abolish the same; and that during said period of time the said private way was and has been kept open and in repair by plaintiff; that said private way does not exceed fifteen feet in width, and is traveled by petitioner and the public generally." The defendant in his answer denied that the plaintiff had acquired a prescriptive right to the use of the road in question.