Holloway v. Birdsong

Beck, J. Mrs. Rosa E. I-Iollowáy filed with the ordinary of Bibb county her petition against Mrs. M. Birdsong and J. E. Wilson, to remove certain obstructions from a private way. She alleged, that she was the owner of certain improved real estate in the City of Macon; that appurtenant to this property so owned [317] by her there was a twenty-foot private way, and also another private way leading from the twenty-foot private way; that for seven years or more before the filing of her petition she had been in continuous, constant, and uninterrupted possession and use of these private waj^s, and that during this time no legal steps had been taken to abolish them; that Mrs. Birdsong and Wilson had obstructed these private ways. Mrs. Birdsong filed a demurrer to the petition, questioning the jurisdiction of the “court of ordinary” to try the issues, which was sustained. A petition for a writ of certiorari being sued out by the plaintiff, the judge of the superior court overruled and denied the same. The act of 1872, codified in §§ 824, 825, 826, and 827 of the Civil Code, giving the ordinary jurisdiction to try summarily the question of removing obstructions to private waj^s, is confined to cases of private ways which arise by prescriptive right acquired by seven years or longer, of possession or user of the same. Brown v. Marshall, 63 Ga. 657. In the present case the plaintiff is endeavoring to have obstructions removed from an alleged private way, under the provision of that part of the act of 1872 which is codified in § 825 of the Code. In order to give the ordinary jurisdiction of proceedings under the code section last referred to, the petition should have shown that the alleged private way from which it was sought to remove the obstruction complained of was not over fifteen feet in width, as well as the fact that it had been kept open and in repair for the period prescribed in the statute. This the petition failed to do, and' the absence of this necessary avérment from the petition left the petition open to a demurrer on the ground that jurisdiction to hear the complaint was wanting. Woolbright v. Cureton, 76 Ga. 107; Collier v. Farr, 81 Ga. 749 (7 S. E. 860). There is nothing in the case of Kirkland v. Pitman, 122 Ga. 256 (50 S. E. 117), which modifies the rulings made in the other cases cited on the point under consideration. It follows that the ordinary did not err in dismissing the petition on demurrer, and that the writ of certiorari was properly refused by the judge of the superior court. Judgment affirmed. All the Justices concur.