Justice v. Dunbar

Smith, Judge.

On this appeal, transferred here by the Supreme Court, Justice contends the trial court erred in granting appellee Dunbar’s motion for summary judgment. Finding the appeal to be without merit, we affirm the judgment of the trial court.

Appellant and appellee own adjoining tracts of land. Appellant brought this suit under Code § 85-1401, seeking to establish a right of private way over a road located on appellee’s property and to enjoin appellee’s obstruction of the road.

1. It was not disputed that appellant’s use of the private road originated by permission of Mrs. Banks, who initially owned the land upon which the private road is located and who sold the land on May 16,1972. Appellant does not contend his use of the road throughout the time *486Banks owned the property was anything except a permissive use. Appellee bought the land on January 21, 1974, and appellant filed this suit on December 1, 1976. From the undisputed evidence, therefore, appellant could not have acquired a private way "from prescription by seven years’ uninterrupted use.” Code § 85-1401. "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 he has changed his position from that of a mere licensee to that of a prescriber.”First Christian Church at Macon, Georgia v. Realty Invest. Co., 180 Ga. 35 (2) (178 SE2d 303) (1934). See also Nasser v. Salter, 213 Ga. 253 (1) (98 SE2d 557) (1957). Thus the trial court was correct to grant summary judgment against appellant on his claim that he had acquired a right of private way by prescription under Code § 85-1401.

Argued November 14,1978 — Decided February 26, 1979 — Rehearing denied March 28, 1979 — Glyndon C. Pruitt, for appellant. John C. Tyler, for appellee.

2. Appellant next contends the evidence showed his right to use the road had arisen by implication of law, the right being "necessary to the enjoyment of lands granted by the sanie owner.” Code § 85-1401; Calhoun v. Ozburn, 186 Ga. 569 (2) (198 SE2d 706) (1938). However, appellant cites no specific portion of the record or transcript supporting the contention, which therefore presents no reason for reversal. Rambo v. Fulton Financial Corp., 145 Ga. App. 791 (245 SE2d 12) (1978).

3. The appeal fails to substantiate appellant’s claim of error, and we affirm the trial court’s grant of summary judgment.

Judgment affirmed.

Quillian, P. J., Webb, P. J., Shulman, Banke and Birdsong, JJ., concur. Deen, C. J., McMurray and Underwood, JJ., dissent.