2020 Georgia Code
Title 44 - Property
Chapter 9 - Easements
Article 3 - Private Ways
§ 44-9-59. Obstructions; Proceedings for Removal; Petition; Rule Nisi; Order; Appeal; Fees

1. In the event the owner or owners of land over which a private way may pass or any other person obstructs, closes up, or otherwise renders the private way unfit for use, the party or parties injured by the obstructions or other interference may petition the judge of the probate court in the county where the private way has been in use to remove the obstructions; and, upon the petition being filed, the judge shall issue a rule nisi directed to the party or parties complained against calling upon the offending parties to show cause why the obstructions should not be removed and the free use of said private way reestablished. The rule shall be served by the sheriff or his deputy at least three days before the day set for the hearing; and when the day arrives the judge shall proceed to hear evidence as to the obstructions or other interference. If it appears that the private way has been in continuous, uninterrupted use for seven years or more and no steps were taken to prevent the enjoyment of the same, the judge shall grant an order directing the party or parties so obstructing or otherwise interfering with the right of way to remove the obstructions or other interference within 48 hours; and, if the party or parties fail to remove the obstructions, the judge shall issue a warrant commanding the sheriff to remove the obstructions immediately.
2. Except as otherwise provided in Article 6 of Chapter 9 of Title 15, either party who is dissatisfied with the judgment of the judge of the probate court pursuant to subsection (a) of this Code section may appeal to the superior court as a matter of right.
3. The fee of the judge of the probate court in a proceeding under subsection (a) of this Code section shall be paid by the losing party. The sheriff's fees shall be the same as those charged for serving a petition or other process of court.

(Ga. L. 1872, p. 60, §§ 2-4; Code 1873, §§ 738, 739, 740; Code 1882, §§ 738, 739, 740; Civil Code 1895, §§ 679, 680, 681; Civil Code 1910, §§ 825, 826, 827; Code 1933, §§ 83-119, 83-120, 83-121; Ga. L. 1953, Jan.-Feb. Sess., p. 519, § 1; Ga. L. 1986, p. 982, § 16.)

- Ga. L. 1986, p. 982, § 25, not codified by the General Assembly, provided that that Act would apply to all cases filed on or after July 1, 1986.

ANALYSIS

• General Consideration
• Applicability
• Available Remedies
• Procedural Requirements
• Appeal
• Illustrative Cases

Cited in Fortson v. Mattox, 67 Ga. 282 (1881); Little v. McCalla, 20 Ga. App. 324, 93 S.E. 37 (1917); First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303 (1934); Huson v. Farmer, 53 Ga. App. 131, 185 S.E. 119 (1936); Seaboard Air Line Ry. v. Brown, 55 Ga. App. 368, 190 S.E. 203 (1937); Cook v. Wimpey, 57 Ga. App. 338, 195 S.E. 325 (1938); Campbell v. Deal, 185 Ga. 474, 195 S.E. 432 (1938); Bowen v. Lewis, 201 Ga. 487, 40 S.E.2d 80 (1946); Putnam v. Sewell, 209 Ga. 28, 70 S.E.2d 462 (1952); Atkinson v. Drake, 212 Ga. 26, 89 S.E.2d 888 (1955); Moon v. Jones, 101 Ga. App. 79, 113 S.E.2d 159 (1960); Jordan v. Ridgdill, 224 Ga. 695, 164 S.E.2d 231 (1968); Jordan v. Ridgdill, 120 Ga. App. 63, 169 S.E.2d 675 (1969); Carter v. Kinman, 132 Ga. App. 845, 209 S.E.2d 230 (1974); Swygert v. Roberts, 136 Ga. App. 700, 222 S.E.2d 75 (1975); O'Neill v. Myers, 148 Ga. App. 749, 252 S.E.2d 638 (1979); Thomas v. Douglas, 165 Ga. App. 128, 299 S.E.2d 605 (1983); Lawhorne v. Horace, 188 Ga. App. 427, 373 S.E.2d 263 (1988); Henderson v. Cam Dev. Co., 190 Ga. App. 199, 378 S.E.2d 495 (1989); Mitchell v. Mitchell, 220 Ga. App. 682, 469 S.E.2d 540 (1996); Stover v. Tipton, 252 Ga. App. 427, 555 S.E.2d 151 (2001).

O.C.G.A. § 44-9-59 applies only to ways acquired by prescription. Belcher v. Kelly, 143 Ga. 525, 85 S.E. 696 (1915), citing Holloway v. Birdsong, 139 Ga. 316, 77 S.E. 146 (1913).

O.C.G.A. §§ 44-9-54 and44-9-59, giving the ordinary (now probate judge) jurisdiction summarily to try obstructions to private ways, is confined to cases of private ways which arise by prescriptive right acquired by seven years' possession or use. Clark v. Anderson, 52 Ga. App. 500, 183 S.E. 852 (1936).

- 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).

- The crux of the requirement for repairs 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. The importance of this "notice by repair" requirement is best illustrated in situations where the initial use of the private way was permissive. Georgia Pac. Corp. v. Johns, 204 Ga. App. 594, 420 S.E.2d 39 (1992).

Removal of obstruction from way may be based upon both O.C.G.A. §§ 44-9-56 and § 44-9-59. Moore v. McConnell, 105 Ga. App. 758, 125 S.E.2d 675 (1962).

Summary remedy is applicable to prescriptive ways and private ways used for one year where the landowner fails to give 30 days' notice, as provided in O.C.G.A. § 44-9-56. But while an applicant for such an order of removal may base the applicant's right to relief upon both sections, yet in the event the applicant prevails and the obstruction is ordered to be removed, the judgment should show upon which claim of the applicant it rests. Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392 (1943).

Available Remedies

If obstruction completed, statutory removal adequate legal remedy.

- If an obstruction of a private way has been completed, the statutory remedy for a removal of the obstruction would afford a full, adequate, and complete remedy at law - whether those deprived of the use rely on a full prescriptive right, or rely only on an inchoate one-year right. Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392 (1943).

- O.C.G.A. §§ 41-2-1,41-2-5, and44-9-59, make ample provision for removal of completed obstructions from private and public ways; thus, when it does not appear why one of these remedies is not adequate and complete, a petition asking for injunctive relief fails to state a cause of action. Levinson v. Pendley, 209 Ga. 335, 72 S.E.2d 306 (1952).

If the obstruction of a private way has been completed, the statutory remedy before the judge of the probate court will afford to the users a full and adequate remedy at law by removal of the obstruction, so that a petition for injunction will not lie. Justice v. Dunbar, 241 Ga. 327, 245 S.E.2d 286 (1978).

- O.C.G.A. § 44-9-59 does not give such a plain remedy at law as will justify the refusal of an injunction to prevent a threatened, continued obstruction. Dodson v. Evans, 151 Ga. 435, 107 S.E. 59 (1921); Phinizy v. Gardner, 159 Ga. 136, 125 S.E. 195 (1924). But see Childers v. Holloway, 69 Ga. 757 (1882).

Where one gives notice of an intention to close a private way, but has not actually obstructed the same, the statutory remedies for removing obstructions do not apply. In a proper case, an injunction may issue to prevent the threatened injury. Croker v. Lewis, 217 Ga. 762, 125 S.E.2d 50 (1962).

- The statutory remedy provided by O.C.G.A. § 44-9-59 for the removal of an obstruction from a private way is available only for the removal of an existing obstruction and is not an adequate and complete remedy when there is a constantly recurring obstruction of a temporary nature. Hancock v. Moriarity, 215 Ga. 274, 110 S.E.2d 403 (1959).

- On a hearing under O.C.G.A. § 44-9-59, there is no authority to order the obstructions removed on the performance of certain conditions by the petitioner. Allen v. Meyerhardt, 64 Ga. 337 (1879).

- On a hearing under O.C.G.A. § 44-9-59, there is no authority to order the way closed. Allen v. Meyerhardt, 64 Ga. 337 (1879).

- The statutory proceeding provided for in O.C.G.A. § 44-9-59 contemplates merely the removal of obstructions from existing private ways, and has no reference to taking the property of the owner of the land. Porter v. Foster, 146 Ga. 154, 90 S.E. 967 (1916).

Agent cannot proceed under O.C.G.A. § 44-9-59. - Where the claim of a right to a private way is founded upon an uninterrupted use of the way for more than seven years by the owners of a certain plantation, their agents, servants, and tenants, the right is not in the agents or servants themselves, but in the owners; their agent cannot institute and carry on a proceeding under O.C.G.A. § 44-9-59 in the agent's own name, either individually or as an agent. Cunningham v. Elliott, 92 Ga. 159, 18 S.E. 365 (1893).

- The petition should show that the alleged private way from which it was sought to remove the obstruction complained of was not over 15 (now 20) feet in width, as well as the fact that it had been kept open and in repair for the period prescribed. Holloway v. Birdsong, 139 Ga. 316, 77 S.E. 146 (1913).

The burden is on the plaintiff to show the constant and uninterrupted use of the way for seven years or longer, and that it has been kept in repair during that time. Goodwin v. Bickers, 22 Ga. App. 13, 95 S.E. 311 (1918).

Where persons claiming a prescriptive right of way apply for the removal of obstructions from it, they must show not only that there has been an uninterrupted use of it for more than seven years, but that it is not more than 15 (now 20) feet wide, and that it has been kept open and in repair, and is the same number of feet originally appropriated. Barnett v. Davis, 38 Ga. App. 494, 144 S.E. 330 (1928).

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 number of feet originally appropriated. Walker v. Greene, 46 Ga. App. 274, 167 S.E. 546 (1933); Clark v. Anderson, 52 Ga. App. 500, 183 S.E. 852 (1936); Roach v. Smith, 79 Ga. App. 348, 53 S.E.2d 688 (1949).

In a proceeding for the removal of an obstruction from a private way, a prescriptive right to use which the applicant claims to have acquired, it is necessary, to sustain the application, to 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 20) feet in width, and that it is the same number of feet originally appropriated, but that the applicant has kept it open and in repair during this period. Scarboro v. Edenfield, 58 Ga. App. 619, 199 S.E. 325 (1938).

In order to sustain a proceeding under O.C.G.A. § 44-9-59, it is necessary for the applicant to show that the applicant has been in the uninterrupted use of the way for seven years or more, that it does not exceed 15 (now 20) feet in width, that it is the same number of feet originally appropriated, and that the applicant has kept it open and in repair during this period. Burnum v. Thomas, 71 Ga. App. 690, 31 S.E.2d 925 (1944).

Where the plaintiff's right to the private way was based on prescription by seven years of uninterrupted use of the same through the improved lands of the defendant, and the proceeding to remove the obstructions was brought under O.C.G.A. § 44-9-59, in order to sustain such a proceeding it is necessary for the applicant to show that the applicant or the applicant's predecessors in title have been in uninterrupted use of the way for seven years or more, that it does not exceed 15 (now 20) feet in width, that it is the same number of feet originally appropriated, and that the applicant and the applicant's predecessors in title have kept it open and in repair during this period. Ponder v. Williams, 80 Ga. App. 145, 55 S.E.2d 668 (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 the applicant's predecessors in title have been in constant and uninterrupted use of the way for seven years or more and that during such time they have kept the way open and in repair and that it does not exceed 15 (now 20) feet in width and is the same number of feet originally appropriated. Deaton v. Taliaferro, 80 Ga. App. 685, 57 S.E.2d 215 (1950).

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).

- In an action by one holding the land under a deed from the prescriber, to require the removal of obstacles erected in the way, it is not necessary to allege that the way was laid out by the petitioner, or that the defendant had knowledge that the way was laid out, used, and enjoyed. Nugent v. Watkins, 124 Ga. 150, 52 S.E. 158 (1905).

- In a proceeding to remove an obstruction from a private way over the land of another, it is not necessary to describe the way insofar as it extends over the land of others; it is sufficient if the description of the way through the land where the obstruction is alleged to have been placed is accurately defined. Johnson v. Williams, 138 Ga. 853, 76 S.E. 380 (1912).

- A description of a road which would not be sufficient in a proceeding to lay out and establish may be sufficient to identify an existing way across which an obstruction has been placed. Kirkland v. Pitman, 122 Ga. 256, 50 S.E. 117 (1904). See also Brennan v. Brooks, 131 Ga. 94, 61 S.E. 1035 (1908).

- Where, in a petition to have obstructions removed from an alleged private way, the petitioner based petitioner's alleged right to the relief for which the petitioner prayed upon seven years' continuous and uninterrupted use of the way, and failed to allege that the land over which the way was claimed was improved land, a demurrer (now motion to dismiss) predicated upon such failure was properly sustained. Watkins v. Country Club, 120 Ga. 45, 47 S.E. 538 (1904).

- It is no defense to the lot owner's right to recover for a substantial interference with the owner's easement in one of the streets upon which the owner's lot abuts that the owner has access to his lot from the other street. Felton v. State Hwy. Bd., 47 Ga. App. 615, 171 S.E. 198 (1933), later appeal, 57 Ga. App. 930, 181 S.E. 506 (1935).

- Under a proceeding to cause obstructions to be removed 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 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).

- Neither the probate court nor the superior court erred in refusing to transfer an action seeking removal of an obstruction from a private way to the county in which the defendant resided since such action was properly brought in the county in which the property at issue was located. Lee v. Collins, 249 Ga. App. 674, 547 S.E.2d 583 (2001).

Appeal

Appeal made in conformity with general provisions.

- O.C.G.A. § 44-9-59 does not itself provide any mode of appeal. An appeal made in accord with O.C.G.A. § 44-9-59 must be made in conformity with the general laws contained in O.C.G.A. Ch. 3, T. 5. Rogers v. Anderson, 95 Ga. App. 637, 98 S.E.2d 388 (1957).

- The failure to serve the opposing party with notice of appeal to the superior court from the ruling ordering an obstruction removed from a private way is not a ground to dismiss the appeal, as there is no requirement for giving of such notice. Slocumb v. Ross, 119 Ga. App. 567, 168 S.E.2d 208 (1969).

- One who is not a party to a proceeding to remove obstructions from a private way under O.C.G.A. § 44-9-59, and has no notice of such proceeding until after judgment was rendered, and who has taken no part in the trial, is not bound by the judgment, although it should appear that the individual was physically present at the hearing of the certiorari (now appeal) brought by the defendant to review the judgment rendered against the individual in the proceeding, but took no part therein. Elliott v. Adams, 173 Ga. 312, 160 S.E. 336 (1931).

- On a proceeding to remove obstructions from a private way, there being sufficient evidence to sustain the finding that the private way claimed existed by prescription, the superior court has no legal right to set aside that judgment on the facts, unless abused, although there may have been conflict in the testimony. Franklin v. Wesley, 73 Ga. 145 (1884).

Where the user of a private way over the land of another person brings a petition under O.C.G.A. § 44-9-59 for the removal of an obstruction placed across the way, barring its further use, and alleges that the way has been in constant and uninterrupted use by the petitioner and others for more than seven years, and when, upon a trial, there is a conflict of the evidence and the ordinary (now probate judge) settles that conflict, it is not error for the superior court to refuse to disturb the settlement of the issues of fact. Cowart v. Baker, 62 Ga. App. 502, 8 S.E.2d 732 (1940).

- Upon the hearing of the writ of certiorari (now appeal), if the rights of the parties depend upon the determination of disputed facts, the court should not pass final judgment, but should remand the case for a new trial under O.C.G.A. § 44-9-59. Desvergers v. Kruger, 60 Ga. 100 (1878).

- An appeal from a judgment of a superior court in an action to remove obstructions from a private way under O.C.G.A. § 44-9-59 is not one of which the Supreme Court has jurisdiction under the Constitution, and it must be transferred to the Court of Appeals. Carter. v. Kinman, 231 Ga. 759, 204 S.E.2d 299 (1974).

The Court of Appeals, not the Supreme Court, had jurisdiction of an action begun in the probate court as a petition for removal of an obstruction of a private way, which was appealed as such to the superior court, and which also concerned whether plaintiffs had an easement across defendant's property. Stutts v. Moore, 218 Ga. App. 624, 463 S.E.2d 30 (1995).

Illustrative Cases

Right to way acquired with unlocked gates effective.

- Where the right to a way was acquired with unlocked gates thereon, the right was just as effective, except for this impediment, as though the right had been acquired without gates. Deaton v. Taliaferro, 80 Ga. App. 685, 57 S.E.2d 215 (1950).

- Where the main purpose of the action was to enjoin the proposed building of a fence upon an alleged private way, and as to the area claimed as a way the construction of the fence had been completed before the defendant was served with the petition or had knowledge of the restraining order, the court did not err in refusing an interlocutory injunction, the plaintiff's remedy in the circumstances being an action at law for removal of the obstruction. Braswell v. Clark, 180 Ga. 727, 180 S.E. 486 (1935).

- The trial court properly refused to order a property owner to remove a fence which obstructed a field road where there was evidence that some old limbs and dead trees were removed from the road from time to time, but there was no evidence that the road was ever scraped, ditched, or otherwise repaired. Simmons v. Bearden, 234 Ga. App. 81, 506 S.E.2d 220 (1998).

- A petition alleging that the plaintiff purchased a described tract of land, and at the same time acquired an easement adjacent thereto over a lane as a means of ingress and egress from the public road to plaintiff's farm, that plaintiff had used this lane without interruption since the date it was acquired until the defendant obstructed the same by placing a "cattle gap" across it, that the obstruction had interfered with the plaintiff's movement of cattle along the lane to a pasture, thereby causing the plaintiff much inconvenience, trouble, and injury to plaintiff's cattle, and thereby depriving plaintiff's family of necessary milk and food, stated a cause of action for injunctive relief. Ozbolt v. Miller, 206 Ga. 558, 57 S.E.2d 601 (1950).

- 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).

- Because a petitioner had surrendered all prescriptive rights in a "settlement road" freely and voluntarily for crossing licenses that were terminated under the contractual terms of the license agreements, then it had no prescriptive rights for purposes of O.C.G.A. § 44-9-59. Latham Homes Sanitation, Inc. v. CSX Transp., Inc., 245 Ga. App. 573, 538 S.E.2d 107 (2000).

- There is no requirement that a plaintiff must actually own property as a condition precedent to plaintiff's adverse usage of a private way for seven years; thus, the plaintiff established seven years use of a private way where plaintiff and family began to use a private road within two weeks of signing a contract to purchase land with a cabin on it and continued such use for more than seven years. Lee v. Collins, 249 Ga. App. 674, 547 S.E.2d 583 (2001).