Huson v. Farmer

Stephens, J.

This was an application to the ordinary of Newton County for an order to remove obstructions from a private way, claimed by the applicant as a right by prescription. The ordinary, after hearing evidence and viewing the premises, granted the order. The defendants carried the case by certiorari to the superior court. In the petition to have the obstructions removed it was alleged that “petitioner and her predecessors in title has been in constant and uninterrupted use for more than seven years of a permanent private road over said land above described not exceeding fifteen feet in width, and no legal steps have been taken to abolish the same.” The defendants, who are the plaintiffs in error now, claim that this petition was fatally 'defective and that the judgment thereon is invalid because it was not alleged in the petition that the land over which the right of way was claimed was improved land, and that the way had been kept open and in repair during the seven years. These objections were not raised by demurrer or motion to dismiss before the ordinary, nor were they raised in the petition for certiorari. These objections to the pleading can not now be urged. Kirkland v. Pitman, 122 Ga. 256 (50 S. E. 117). There was testimony tending to prove every essential of a private way by proscription. The fact that the land was a city lot abutting on a street seems sufficient to stamp it as improved land; but there was also testimony that it had been cultivated. It could not be classed as wild land. There is ample evidence that the way was kept open and in repair for more than seven years. One witness testified to a period of nineteen years. The inference is that the persons who used the way kept it open and in repair. The ordinary inspected the alleged way, and reported in his answer what he observed. . He heard the witnesses and found in favor of the petitioner.

The plaintiff by reason of having included the land on which the alleged alley or way is located in the description of land leased by the plaintiff to a lessee in a lease of lands of the plaintiff abutting on the alley or way, is not estopped from asserting her right to force the defendants to remove the obstruction.

The judge of the superior court affirmed the judgment of the ordinary, and no legal reason appears why this judgment should be set aside. Franklin v. Wesley, 73 Ga. 145; Everedge v. Alexander, 75 Ga. 858 (5).

Judgment affirmed.

Jenkins, P. J., and Sutton, J., concur.