Cook v. Wimpey

Gueery, J. 1. Where A brought a proceeding before the ordinary against B to require B to remove obstructions in an alleged private way, said proceeding being based on Code, § 83-119, and A introduced evidence which would authorize a finding that such private way had been in use for twenty years or more, that it was not more than fifteen feet in width, and had been kept open and in repair by him or his predecessors in title, this court will not disturb the finding of the ordinary in favor of A, which has been approved by the judge of the superior court on certiorari. 2. The fact that a subsequent owner of the premises over which the alleged private way ran, obstructed it by building a house over a part of this private way, but permitted the private way to be changed a few feet and its use was continuous and uninterrupted, will not cause this proceeding to fail because of such change for a short distance. The court was authorized to find that such change was by permission and that it did not defeat title by prescription to a private way which had already ripened; nor did it create a new date from which prescriptive title must ripen as to the change made. The court did not err in overruling the certiorari. Judgment affirmed. Broyles, G. J., and MacIntyre, J., oonaur.