ON MOTION EOR REHEARING.
Gilbert, Justice.In its motion for a rehearing the plaintiff claims that under the circumstances of the present case the only notice which it was required to give the owner of the land was notice of use of the private way in question, and relies on the case of Everedge v. Alexander, 75 Ga. 859 (4), to the extent of the lan*42guage which is quoted therefrom below. It concedes that in view of Watkins v. Country Club, 120 Ga. 47 (supra), and Nugent v. Watkins, 134 Ga. 153 (53 S. E. 158), the “six months knowledge” of the owner, as used in Everedge v. Alexander, supra, has no application to the present case, but claims that the following language in that case is ajoplicable: (a) “for the reason that knowledge and acquiescence of the owner of the lands is the very essence of the right of way against the owner,” and (b) “though he acquiesce silently or consent openly all the time.” The case of Everedge v. Alexander was based on prescription by seven years use and actual working of the roadway; and the ordinary found that plaintiffs had acquired an absolute right to the use of the roadway, and ordered obstructions removed. The case was taken to the superior court by certiorari; the presiding judge dismissed the certiorari; the defendant excepted, and the judgment of the superior court was affirmed by this court. The headnotes were not elaborated, and the statement of facts is meager; but the record in this court discloses that the right claimed was under the provisions of the Civil Code (1910), §§ 3641, 834, and not under §§ 809, 818. Before showing that the quoted language has no application to the present case, some observations are helpful in considering the rights and liabilities of an user and an owner of a private way. The Civil Code (1910), § 824, makes unlawful the obstruction of a private right of way after the right to use that private way has been acquired. Such a right may be obtained under § 809, after laying out a road under § 818; or it may be obtained under § 3641. In the first case the user lays out the private way at his own expense, after petition to the ordinary, etc. In the latter case the right may be acquired by express grant or by prescription. When use of a private way has been obtained under §.809 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 such owner is barred from claiming damages. § 818. Knowledge of such use must be brought home to the owner, “for the reason that knowledge and acquiescence of the owner of the lands is the very essence of the right of way against the owner.” 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 he enters with the consent of the owner, bring *43some affirmative notice to the owner, by making repairs or otherwise, of his intention to prescribe through seven years use. It may be replied, as in this case, that passive keeping in repair is notice, but, as was demonstrated by citations of decisions in the opinion heretofore rendered in this case, 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. “Keeping in repair” was then the equivalent of action and affirmative notice of an'intention to prescribe, even where the use originated in consent. In the present case the plaintiff never opened the way, and not until the motion for a rehearing was it claimed that its use was other than permissive. On the contrary, the record indicates that the sole issue was prescription on the theory of seven years mere use and keeping open and in repair for that period. Obviously the case must be governed by the provisions of §§ 3641 and 824. The plaintiff now admits in its motion for a rehearing that “We think it sound that the underlying principle of all decisions which require the applicant to keep the way open and in order or keep in repair in addition to use for seven years as required at common law are for the purpose of providing notice to the owner when he does not already have it,” but contends that “The knowledge itself gained in permissive use works to the benefit of the owner, and he should know, under the case of Everedge v. Alexander, that prescription is running against him.” Of course the owner had knowledge of use. He acquiesced in that use by the plaintiff as a licensee, but the right which plaintiff seeks under § 3641, if obtained, is a prescriptive right by use, and, as demonstrated in the opinion rendered in this ease, the decisions of this court are that under § 3641 the notice required is notice of the assertion of an adverse us'e, under claim of right, as distinguished from a mere permissive use. We shall now show that not only the expression, “six months knowledge,” quoted from Everedge v. Alexander, supra, has no application to the present case, but that the other quoted language has likewise no application. What is the import of the language “for the reason,” etc., above quoted, when considered in the context of headnote 4 in Everedge v. Alexander ? That headnote begins: “The doctrine that prescriptive titles to the fee in real estate by seven years possession can not originate in consent, be*44cause the possession there must he adverse all the time, does not prevail or apply to a right of way, under the act of 1872, and the Code, for the reason that knowledge and acquiescence of the owner of the land is of the very essence of the right of way against the owner.” The record in Everedge v. Alexander in this court shows that the plaintiff did not begin his use adversely, but later began his prescription by making repairs, which constituted notice to the owner, and when thereafter the owner acquiesced for seven years the use of the plaintiff ripened into an absolute right, and under the act of 1872, now codified in § 824, he was entitled to have obstructions removed. What was said was not meant as any relaxation of the rule of prescription when asserted under § 3641, and under the facts of the case it is inferable that the knowledge referred to meant knowledge of an adverse possession which arose subsequently to the permissive possession. It is evident from the record in this court that the courts below decided the issue under the provisions of what is now § 3641, and this court was correct in its affirmance; brit apparently Chief Justice Jackson, in writing the sentence quoted, really had in mind the possible situation of an owner under the provisions of §§ 809 and 818, notwithstanding the fact that the case had been decided below under the provisions of § 3641. As illustrating that the court was concerning itself with the provisions of §§ 809 and 818, it then proceeded to show what knowledge it was referring to: “He must have six months knowledge to make the right of way against him complete (Code, § 731) [now 818], and ‘steps must be taken to prevent the enjoyment of the way5 by the owner, to stop the continuance of the use, or it will ripen into a prescription, though he acquiesce silently or consent openly all the time. ” In Watkins v. Country Club, supra, the court pointed out, as we do here, that the “six months knowledge” has no application to § 3641. Indeed, the court in Everedge v. Alexander cited “Code, § 731,” now Civil Code of 1910, § 818, in connection with statutory proceedings, and it is inescapable that the court had in mind the liability of the owner of land after six months knowledge of use of a private way over such land, established and used under §§ 809, 818, and that the expression “though he acquiesce silently or consent openly all the time” is also not applicable to § 3641 under which plaintiff in error proceeded. As stated in Watkins v. Country Club, § 818 *45“is apparently intended as a statute of limitation upon the right of the owner of land over which a private way is laid out, to have his damages for the subjection of his land to the servitude of the way assessed and paid. That the 'six months knowledge’ of the owner of the land in this section refers to knowledge of the laying out of a way under the statutory proceedings seems apparent,” etc. The situation described by the language quoted will operate against the owner of the land in proceedings under §§ 809, 818, but notice of use can not be a substitute for notice of prescription by use under § 3641. In Hill v. Miller, 144 Ga. 404 (87 S. E. 385), to which we are cited, there was no contention by the owner of the land that the plaintiff had not acquired a prescriptive right. He built a fence and gate upon the right of way, and merely claimed that it was for the protection of his property and not an obstruction inconsistent with the use of the way by the plaintiff. The prescription had been acquired when there were no gate and fence, and of course the court held that they were such an obstruction as the plaintiff could have removed, as a prescriptive right must be deter-» mined according to the use during the prescriptive period.
Motion for rehearing denied.
All the Justices concur.