Short v. Walton

Warner, Chief Justice. This case came before the court below on a certiorari to the ordinary of Wilkes county. It appears from the record that Walton et al. petitioned the ordinary to have certain obstructions which had been made to an alleged private way removed therefrom. The ordinary refused the application, and the petitioners sued out a writ of certiorari, and the court, after considering the return of the ordinary and the evidence, sustained the certiorari, and ordered that the obstructions to the alleged private way claimed by the petitioners, should be removed; whereupon the defendants in certiorari excepted. It appears from the return of the ordinary and the evidence in the record, that the petitioners had been in the habit of using a private way over the unenclosed land of Short and Colley for more than seven years — that is to say, 30 the general direction of the road used by them was the same, but that from ruts, mudholes, and other obstructions, the bed of the road was frequently changed for a considerable distance, and that for awhile it came out one hundred yards above its present place. The petitioners claim a prescriptive right of way over the land of Short and Colley, under the evidence in the record. This is an important question as regards the owners of unenclosed lands in this state. Persons may obtain private ways over the lands of others, by an order from the ordinary, or by prescription of seven years, but such private ways must not exceed fifteen feet in width, and must be kept open and in repair by the persons for whose benefit the same are established. Code, §721. Did the petitioners, by using a road over the unenclosed lands of Short and Colley, sometimes in one place and sometimes in another to suit their own convenience, to avoid ruts, mud-holes, and other obstructions, for more than seven years, acquire a prescriptive right thereto % We think not. To entitle them to a prescriptive right of way over the unenclosed land of Short and Colley, they should have shown that they had been in the uninterrupted use of a permanent road over their land not exceeding fifteen feet in width, and bad kept it open and in repair for seven years.. They could not claim a prescriptive right of -way over their land by making roads over it to suit their convenience; otherwise, they might appropriate a considerable portion of their unenclosed land for their private way. In our judgment, the court erred in sustaining the certiorari. Let the judgment of the court below be reversed.