2020 Georgia Code
Title 44 - Property
Chapter 5 - Acquisition and Loss of Property
Article 7 - Prescription
§ 44-5-175. Prescription Involving Incorporeal Rights
An incorporeal right which may be lawfully granted, such as a right of way or the right to throw water upon the land of another, may be acquired by prescription.
(Civil Code 1895, § 3590; Civil Code 1910, § 4170; Code 1933, § 85-409.)
Law reviews.- For article, "Some Aspects of the Law of Easements," see 9 Ga. St. B.J. 287 (1973).
JUDICIAL DECISIONSANALYSIS
- General Consideration
- Rules
- Particular Rights
- Illustrative Cases
Cited in Waters v. Baker, 190 Ga. 186, 8 S.E.2d 637 (1940); Warlick v. Rome Loan & Fin. Co., 194 Ga. 419, 22 S.E.2d 61 (1942); Georgia R.R. & Banking Co. v. Flynt, 93 Ga. App. 514, 92 S.E.2d 330 (1956); Forsyth Corp. v. Rich's, Inc., 215 Ga. 333, 110 S.E.2d 750 (1959); City of Atlanta v. Williams, 218 Ga. 379, 128 S.E.2d 41 (1962); Chancey v. Georgia Power Co., 238 Ga. 397, 233 S.E.2d 365 (1977).
Rules
Prescriptive title to easement is governed by the same rules as prescriptive title to land. Georgia Power Co. v. Gibson, 226 Ga. 165, 173 S.E.2d 217 (1970).
Right to prescription is measured by the actual use, and not by a capacity for more extended use, and the right does not begin to run until an actionable injury has been inflicted. Goble v. Louisville & N.R.R., 187 Ga. 243, 200 S.E. 259 (1938).
Easement acquired by prescription in seven or 20 years.
- An easement may be acquired by prescription in 20 years, unless there is some color of title, in which case only seven years is required. Smith v. Clay, 239 Ga. 220, 236 S.E.2d 346 (1977).
Prescriptive period relates to the time of the use of the easement without regard to the actual entry by the prescriber on the adjacent tract over which the easement is asserted. Hogan v. Cowart, 182 Ga. 145, 184 S.E. 884 (1936).
Particular Rights
Prescriptive right to maintain signs fails to arise if no use for 20 years.
- Prescriptive right to maintain signs on the building of an owner does not arise if the use and enjoyment of the privilege has not existed for a period of 20 years, in the absence of color of title. Smith v. Jensen, 156 Ga. 814, 120 S.E. 417 (1923).
Possession of road by public for 20 years ripens into title.
- Possession, use, and upkeep of a road by the public as a highway for 20 years ripens into a prescriptive title. Hyde v. Chappell, 194 Ga. 536, 22 S.E.2d 313 (1942).
Public authorities must have accepted road.
- In order for a road to be declared a public one by prescription, the public authorities must have accepted the road or exercised dominion over the road. Maintenance or repair can constitute such acceptance. Jordan v. Way, 235 Ga. 496, 220 S.E.2d 258 (1975).
When alley used by public for statutory period prior to obstruction, obstruction must be removed.
- When the evidence was uncontradicted that an alley had been used by the public in general for more than 20 years prior to its obstruction for 30 years prior to trial, a finding was demanded that the public had acquired a prescriptive right to the free and unobstructed use of the alley and that it was a public alley, and since prescription does not run against a municipality as to land held for the benefit of the public, such as a public alley, the obstruction must be removed. Henderson v. Ezzard, 75 Ga. App. 724, 44 S.E.2d 397 (1947).
Right to use water may be acquired by prescription.
- Special right to a use of a watercourse, or to flow water upon the land of another, may in all cases be acquired by prescription. Anneberg v. Kurtz, 197 Ga. 188, 28 S.E.2d 769 (1944).
As to the backflow of water, see Columbus Power Co. v. City Mills Co., 114 Ga. 558, 40 S.E. 800 (1902).
As to the use of a watercourse for floating timber, see Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7, 60 S.E. 868 (1908).
Right to maintain a private nuisance may be acquired by prescription. This is especially true if the nuisance is in the nature of an easement. Anneberg v. Kurtz, 197 Ga. 188, 28 S.E.2d 769 (1944).
As to burial rights, see Roumillot v. Gardner, 113 Ga. 60, 38 S.E. 362, 53 L.R.A. 729 (1901).
Illustrative Cases
Right to use open agricultural ditch through lands of adjoining proprietor may be prescriptively acquired.
- Owner of land may acquire by prescription an easement over the lands of another, the prescriptive period of adverse use being 20 years or longer, unless under color of title, and this may apply to the right of a proprietor to use an open agricultural ditch extending from the proprietor's lands through the lands of an adjoining proprietor and there connecting with a river, for the purpose of drainage, whether or not the prescriber ever actually entered or occupied the adjacent land. Hogan v. Cowart, 182 Ga. 145, 184 S.E. 884 (1936).
Once general area for telephone line use outlined, stringing additional lines within easement permissible.
- When poles and wires were used in the operation of a telephone line or lines over the lands of another, they should be considered as having marked or outlined a general area in use according to the usual and ordinary manner, and if the outer limits of this space remained the same for the prescriptive period of 20 years, the resulting easement would apply at least to the general area, so that the stringing of additional wires anywhere therein consistently with customary location would be permissible as territorially within the easement, whether or not the identical space to be physically occupied by such wires had ever before been so occupied by other wires. Kerlin v. Southern Bell Tel. & Tel. Co., 191 Ga. 663, 13 S.E.2d 790 (1941).
Evidence demanded finding wall was subject to easement for support of adjacent building.
- In an action by the owners of a lot against the corporate owner of an adjoining lot and a contractor to prevent the corporation from encroachment by inserting girders of its new building into the wall on the plaintiffs' lot, and to eject the corporation from the occupation of any part of the wall, the evidence demanded a finding that the wall in question was subject to an easement in favor of the corporation, giving the latter a right of a user in the wall for the support of its building, and that the use being exercised imposed on the wall no greater burden than that which had previously existed through the use by the corporation's predecessor in title, the former use having been under and by virtue of a valid claim of right, and having been acquiesced in by the plaintiffs and their predecessors for a length of time in excess of the prescriptive period. Joel v. Publix-Lucas Theater, Inc., 193 Ga. 531, 19 S.E.2d 730 (1942).
Right to empty refuse into stream acquired by 20-year prescriptive use.
- When a person in the operation of a canning plant has from June 1st to November 1st of each year, for more than 20 years emptied the refuse from the plant into a nonnavigable stream, the person has thereby acquired a prescriptive right so to do. Anneberg v. Kurtz, 197 Ga. 188, 28 S.E.2d 769 (1944).
Easement to flood lands not acquired by merely maintaining trestle over flowing stream.
- Railroad company which has for 25 years maintained a trestle, under which a stream flows, and abutments does not thereby acquire a prescriptive easement to flood lands, unless such flooding has been continuous and uninterrupted for a period sufficient to ripen into prescription. Goble v. Louisville & N.R.R., 187 Ga. 243, 200 S.E. 259 (1938).
Beaver dams.
- Landowner enjoys no prescriptive right to the continued existence of beaver dams in a creek which form a border of the landowner's property, because the dams are not erected through human agency. Dawson v. Wade, 257 Ga. 552, 361 S.E.2d 181 (1987).
