Everedge v

Alexander, 75 Ga. 858, 1885 Ga. LEXIS 252 (1885). Knowledge and acquiescence of owner is of very essence of right of way against owner. Everedge v. Alexander, 75 Ga. 858, 1885 Ga. LEXIS 252 (1885). Prescriber must give notice. — It is fundamental that prescription is to be strictly construed, and that the prescriber must give some notice, actual or constructive, to the individual against whom the prescriber intends to prescribe. Burnum v. Thomas, 71 Ga. App. 690, 31 S.E.2d 925, 1944 Ga. App. LEXIS 193 (1944). When use originates by permission, prescription runs upon notification of changed position. — One who seeks to ripen an absolute right to the use of a private way by prescription, instead of obtaining it by express grant, must, when that person enters with the consent of the owner, bring some affirmative notice to the owner, by making repairs or otherwise, of intention to prescribe through seven years’ use. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303, 1934 Ga. LEXIS 446 (1934). When the use of a private way originates by permission of the owner, prescription does not begin to run until the user notifies the owner, by repairs or otherwise, that the user has changed position from that of a mere licensee to that of a prescriber. Burnum v. Thomas, 71 Ga. App. 690, 31 S.E.2d 925, 1944 Ga. App. LEXIS 193 (1944); Duncan v. Sluder, 204 Ga. 458, 50 S.E.2d 78, 1948 Ga. LEXIS 462 (1948); Nassar v. Salter, 213 Ga. 253, 98 S.E.2d 557, 1957 Ga. LEXIS 352 (1957); Hunt v. Parker, 221 Ga. 484, 145 S.E.2d 483, 1965 Ga. LEXIS 505 (1965). 44-9-54 Owner of property adjacent to a bankruptcy debtor’s private airport did not have a prescriptive easement to use the airport since the owner’s use of the airport was permissive and any repairs or maintenance to the airport were not substantial enough to serve as notice to the debtor of an adverse claim. Flyboy Aviation Props., LLC v. Franck, 501 B.R. 808, 2013 Bankr. LEXIS 4532 (Bankr. N.D. Ga. 2013). Prescriber must show that way kept open and in repair during statutory period. — To acquire a private way by prescription it is essential that the prescriber keep the way in repair for the period of prescription. Charleston & W.C. Ry. v. Fleming, 118 Ga. 699, 45 S.E. 664, 1903 Ga. LEXIS 664 (1903). In order to set up a prescriptive right of way, it is essential that the prescriber show not only that prescriber has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20) feet in width, and that it is the same number of feet originally appropriated, but that the prescriber has kept it open and in repair during this period. Rogers v. Wilson, 171 Ga. 802, 156 S.E. 817, 1931 Ga. LEXIS 469 (1931). The right of private way over another’s land may arise by prescription from seven years’ uninterrupted use through improved lands, but in order to set up this prescriptive right of way, it is essential that the prescriber show not only that one has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20) feet in width, and that it is the same number of feet originally appropriated, but that the person has kept it open and in repair during this period. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303, 1934 Ga. LEXIS 446 (1934); Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392, 1943 Ga. LEXIS 506 (1943). In order for one to take or keep another’s land as a road for private use, that one should be compelled to keep it open and in repair. Keeping it open and working it would be the best evidence of that person’s intention to appropriate it for a road, and would put the owner upon notice that the person did intend to appropriate it. Bur- 77 Requirements (Cont’d) num v. Thomas, 71 Ga. App. 690, 31 S.E.2d 925, 1944 Ga. App. LEXIS 193 (1944). Though O.C.G.A. § 44-9-54 is silent as to the necessity for keeping open and in repair a private way, it has been held by the Supreme Court many times that these are essential requirements. Hardin v. Snow, 201 Ga. 58, 38 S.E.2d 836, 1946 Ga. LEXIS 423 (1946). One of the essential requirements for the acquiring of a prescriptive right of way over the lands of another is that the party claiming such right has kept the way in repair. Sams v. Seaboard Air Line R.R., 218 Ga. 569, 129 S.E.2d 859, 1963 Ga. LEXIS 263 (1963). In order to set up a prescriptive right of way, it is essential that the prescriber show not only that the prescriber has been in the uninterrupted use thereof for seven years or more, that it does not exceed 20 feet in width, and that it is the same number of feet originally appropriated, but also that the prescriber has kept it open and in repair during this period. Hasty v. Wilson, 223 Ga. 739, 158 S.E.2d 915, 1967 Ga. LEXIS 682 (1967). Crux of repairs requirement lies in notice of adverse use. — The crux of the requirement for repairs, or maintenance of the private way, lies not in the actual effectuation of repairs by the prescriber but in the notice of adverse use the performance of such repairs would give to the property owner. Rizer v. Harris, 182 Ga. App. 31, 354 S.E.2d 660, 1987 Ga. App. LEXIS 1613 (1987); Georgia Pac. Corp. v. Johns, 204 Ga. App. 594, 420 S.E.2d 39, 1992 Ga. App. LEXIS 932 (1992); Keng v. Franklin, 267 Ga. 472, 480 S.E.2d 25, 1997 Ga. LEXIS 39 (1997). Passive keeping in repair is notice, but inaction will not suffice; the expression “keeping in repair” originated in an age when private ways were unpaved and of necessity had to be repaired in order that the use thereof might be continued, and was then the equivalent of action and affirmative notice of an intention to prescribe, even where the use originated in consent. First Christian Church 44-9-54 v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303, 1934 Ga. LEXIS 446 (1934). If repair made by landowner’s permission, no prescriptive right acquired. — Where the landowner was merely passive and made no objection to the use of and repairing the road, then such use and repairs thereon would be the proper basis for obtaining a prescriptive right to the road. But, if the use of and the repairs made on the road were by the permission of the landowner, then the plaintiff would not acquire a prescriptive right or title to the road. Burnum v. Thomas, 71 Ga. App. 690, 31 S.E.2d 925, 1944 Ga. App. LEXIS 193 (1944). Because an adjoining landowner’s use and repair of a landowner’s road began with permission, a special master’s finding that the adjoining landowner never asked for permission and that the owners never objected to their activities from 1968 to 2008 was inadequate to establish the adverse notice necessary to establish an easement by prescription. McGregor v. River Pond Farm, LLC, 312 Ga. App. 652, 719 S.E.2d 546, 2011 Ga. App. LEXIS 1008 (2011). It is not incumbent upon the prescriber to make repairs where none are needed. The requirement is limited to the making of such repairs as become necessary in order to make a way usable. Hardin v. Snow, 201 Ga. 58, 38 S.E.2d 836, 1946 Ga. LEXIS 423 (1946). Mere passing over the land would not work prescription. Raines v. Petty, 170 Ga. 53, 152 S.E. 44, 1930 Ga. LEXIS 396 (1930). To acquire a prescriptive right to a private way over land, it is necessary to show the uninterrupted use of a permanent way, not over 15 (now 20) feet wide, kept open and in repair for seven years. It is not sufficient to show that those claiming the prescription have been accustomed for more than seven years to pass over the land, changing the way as they saw fit, to avoid obstructions or for convenience. Short v. Walton, 61 Ga. 28, 1878 Ga. LEXIS 8 (1878). Merely traveling over insufficient. — That one has been in the habit of traveling across the land of another by a 78 44-9-54 route more than 15 (now 20) feet wide, which was not kept in repair, and was not permanent in its location, will not suffice. Childers v. Holloway, 69 Ga. 758, 1882 Ga. LEXIS 356 (1882). Merely passing through an alley in a city, belonging to the owner of the adjacent property and kept open by the owner for personal use or the use of the owner’s tenants, will not ripen into a right to continue such passing by any lapse of time, no repairs being made nor any other acts being done so as to give notice to the owner of a claim of right to pass, as distinguished from a mere license or permission. Nassar v. Salter, 213 Ga. 253, 98 S.E.2d 557, 1957 Ga. LEXIS 352 (1957). Location of the way must not shift from place to place as to any part of the route, but the way must occupy the same ground all the while and be kept in repair on that ground. Raines v. Petty, 170 Ga. 53, 152 S.E. 44, 1930 Ga. LEXIS 396 (1930). Where way changed by petitioner, no prescriptive right. — Where it appears that a private way claimed to exist by prescription was not permanent, but was obstructed and changed by the petitioner personally, the county erred in ordering it opened. Leathers v. Furr, 62 Ga. 421, 1879 Ga. LEXIS 548 (1879). Where one who had for a period of more than two years used as a private way a strip of land belonging to another, then at the request of the owner abandoned this strip and, with the owner’s consent, used in its stead as a private way, for more than five but less than seven years, another strip of land belonging to the owner, no prescriptive right to the use of either strip as a private way arose in favor of the person first mentioned. Peters v. Little, 95 Ga. 151, 22 S.E. 44, 1894 Ga. LEXIS 456 (1894). Right to way acquired with unlocked gates effective. — Where the plaintiff’s right to a way in question in a proceeding was acquired with unlocked gates thereon, plaintiff’s right to the way was just as effective, except for this impediment, as though plaintiff’s right had been acquired without gates on the way. Deaton v. Taliaferro, 80 Ga. App. 685, 57 S.E.2d 215, 1950 Ga. App. LEXIS 753 (1950). Average width not to exceed statutory limit. — It will not alter the case that the average width of the road, considering its entire length, was not over 15 (now 20) feet. Childers v. Holloway, 69 Ga. 758, 1882 Ga. LEXIS 356 (1882). Rights not defeated by wider places. — Where a private way of the general width of 15 (now 20) feet, but with a few wider places, is laid out by the owner of the land, and the same is used for the statutory period, the existence of the wider places will not defeat the rights of the users of the way. Kirkland v. Pitman, 122 Ga. 256, 50 S.E. 117, 1904 Ga. LEXIS 807 (1904). Where the general width of a private way does not exceed 20 feet, the mere existence of a few wider places will not defeat the right of the users; accordingly, the increased width of a private road as it formerly turned out in either direction into a public road could not be said, as a matter of law, to have caused a forfeiture of the rights of a petitioner for the removal by a railroad of obstructions from the road. Latham Homes Sanitation, Inc. v. CSX Transp., Inc., 245 Ga. App. 573, 538 S.E.2d 107, 2000 Ga. App. LEXIS 983 (2000). By running around spot few hours until road repaired. — Whilst the way is confined by the law to a track of 15 (now 20) feet, yet the mere running around one spot until the road there could be repaired within a few hours, which was done, and it was immediately resumed as the way again, is not an increase of width as to break the continuance of the use of it. Everedge v. Alexander, 75 Ga. 858, 1885 Ga. LEXIS 252 (1885). Use need not be by one party, but may be continued by successor in title. Thompson v. Easley, 87 Ga. 320, 13 S.E. 511, 1891 Ga. LEXIS 157 (1891). Results Character of the use during the prescribing period determines the 79 Results (Cont’d) right to the prescriber. Hill v. Miller, 144 Ga. 404, 87 S.E. 385, 1915 Ga. LEXIS 221 (1915). When way legally obtained and continued for statutory period, right becomes absolute. — When the use of a private way has been legally obtained and is continued as long as seven years, of which the owner has had six months’ knowledge without moving for damages, the right of use becomes absolute, and the owner is barred from claiming damages. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303, 1934 Ga. LEXIS 446 (1934). Prescription passes with land. — Where one has acquired a prescriptive right to a private way, whether the prescription be of common-law or statutory origin, the right to the way presumably passes with the land to which it is appurtenant. Nugent v. Watkins, 124 Ga. 150, 52 S.E. 158, 1905 Ga. LEXIS 680 (1905). Interference and Obstructions Obstruction of private right of way after right to use way is acquired is unlawful. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303, 1934 Ga. LEXIS 446 (1934). Once an easement has been acquired, the owner of the servient tenement may not unilaterally alter the path of the easement. When a subsequent owner obstructs part of a private way but permits the private way to be changed a few feet so that its use is continued without interruption, such permissive change will not defeat a title by prescription to a private way that has already ripened, nor create a new date from which prescriptive title must ripen as to the permitted change. BMH Real Estate Pshp. v. Montgomery, 246 Ga. App. 301, 540 S.E.2d 256, 2000 Ga. App. LEXIS 1219 (2000). To sustain an application for the removal of obstructions from an alleged private way, the right to which is based upon prescription by seven years’ use, it is essential that the applicant show not only that the applicant has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 44-9-54 20) feet in width, and that it is the same feet originally appropriated, but that the applicant has kept it open and in repair during this period. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303, 1934 Ga. LEXIS 446 (1934). Before an applicant can have obstructions removed from a private way, the applicant must show that it is in the same 15 (now 20) feet originally appropriated. Collier v. Farr, 81 Ga. 749, 7 S.E. 860, 1888 Ga. LEXIS 337 (1888). Before an applicant can have obstructions removed from a private way, the applicant must show not only that there has been an uninterrupted use for more than seven years, but that it is not more than 15 (now 20) feet wide, that the applicant has kept it open and in repair, and that it is the same feet originally appropriated. Clark v. Anderson, 52 Ga. App. 500, 183 S.E. 852, 1936 Ga. App. LEXIS 162 (1936); Priest v. Dupree, 60 Ga. App. 149, 3 S.E.2d 106, 1939 Ga. App. LEXIS 523 (1939); Roach v. Smith, 79 Ga. App. 348, 53 S.E.2d 688, 1949 Ga. App. LEXIS 653 (1949). In order for an applicant to have an obstruction removed from a private way, it is necessary for the applicant to show that the applicant and predecessors in title have been in constant and uninterrupted use of the way for seven years or more, that during such time they have kept the way open and in repair, that it does not exceed 15 (now 20) feet in width, and that it is the same number of feet originally appropriated. Deaton v. Taliaferro, 80 Ga. App. 685, 57 S.E.2d 215, 1950 Ga. App. LEXIS 753 (1950). Where no evidence of repairs, no obstruction removed. — Where the evidence did not show that the users of an alley had at any time made repairs to the alleged 15-foot (now 20-foot) alley as to which they claimed a prescriptive right of user, they were not entitled to have removed, under O.C.G.A. § 44-9-54, an obstruction which had been placed in the alley. Maddox v. Willis, 205 Ga. 596, 54 S.E.2d 632, 1949 Ga. LEXIS 570 (1949). Applicant not entitled to judgment by proof that road closed without notice after year’s use. — Under a proceeding to cause obstructions to be re- 80 moved from a private way, and alleging solely that the way was one established by prescription for more than seven years, the applicant is not entitled to a judgment by proof that the road has been in use as a private way for more than a year, and that the owner has closed it without giving to the common users 30 days’ notice in writing, in order that they might take legal steps to have it made permanent, as required by O.C.G.A. § 44-9-56. Cowart v. Baker, 62 Ga. App. 502, 8 S.E.2d 732, 1940 Ga. App. LEXIS 317 (1940). Prescriptive rights-of-way awarded. — Where the evidence showed that defendant’s predecessor-in-title never prevented the public from using the roads, and that plaintiffs never sought permission to do so, the repairs were extensive enough to put the owner on notice that others were using the road. Therefore, the landowners were required to remove obstructions from the private road and the plaintiffs were awarded prescriptive rights-of-way. Georgia Pac. Corp. v. Johns, 204 Ga. App. 594, 420 S.E.2d 39, 1992 Ga. App. LEXIS 932 (1992). Prescriber using private way may legally remove obstructions. — Where 44-9-55 one has used a private way for more than 30 years without gates or other obstructions, the erection of gates or fences across the way by another would give the prescriber the right to have the obstructions removed in the manner provided by law. Hill v. Miller, 144 Ga. 404, 87 S.E. 385, 1915 Ga. LEXIS 221 (1915). Obstruction of private way gives rise to damage action. — The obstruction of a prescriptive private way would constitute an interference with a private right, and gives rise to a right of action in tort for damages from the alleged violation of the right. Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392, 1943 Ga. LEXIS 506 (1943). Threatened obstruction prevented by injunction. — To place an obstruction across a private way sufficient to prevent its use would constitute a nuisance, and the threatened obstruction may be prevented by an injunction in equity. A different case might be presented if the obstruction had already been placed across the private way, since the law provides a legal remedy for its removal. Hardin v. Snow, 201 Ga. 58, 38 S.E.2d 836, 1946 Ga. LEXIS 423 (1946).