Opinion
20902.
ARGUED JUNE 13, 1960.
DECIDED JULY 7, 1960. REHEARING DENIED JULY 19, 1960.
Injunction. Head Superior Court. Before Judge Boykin. March 5, 1960.
Aubrey W. Gilbert, Gilbert Head, for plaintiff in error.
Shirley C. Boykin, William P. Johnson, Frank L. Garreld, contra.
1. Special grounds 1, 2, and 3, which assign error on the exclusion of evidence by the trial court, are without merit since it does not appear in these grounds that such evidence was relevant and material and illustrative of any issue in the case.
2. In the instructions given, the court sufficiently stated the issues and contentions of the parties, and further instructed the jury that the pleadings would be out with them, and they would be at liberty to read and study them to see what the contentions of the plaintiff and the defendant were. There is no merit in special ground 4, either on the contention that the court failed to state with sufficient fullness the contentions of the defendant, or that it unduly stressed and emphasized the pleadings and contentions of the plaintiff. Miller v. Coleman, 213 Ga. 125, 126 ( 97 S.E.2d 313); Phinizy v. Bush, 135 Ga. 678 (3) ( 70 S.E. 243).
3. Those portions of the court's charge, which are attacked in special grounds 5 and 6, embody principles of law approved in the cases of Kirkland v. Pitman, 122 Ga. 256 (3) ( 50 S.E. 117); and Cook v. Wimpey, 57 Ga. App. 338 (2) ( 195 S.E. 325); and are not erroneous for any reason assigned.
4. Special ground 7, which complains that the court erroneously stated the contentions of the defendant in its charge to the jury, is without merit.
5. For the reasons stated in the opinion, the charge complained of in special grounds 8 and 9 was erroneous.
6. Since the evidence on various issues in the case was in conflict and did not demand a verdict for either party, the general grounds are without merit.
7. It was error to deny the defendant's motion for a new trial as amended.
ARGUED JUNE 13, 1960 — DECIDED JULY 7, 1960 — REHEARING DENIED JULY 19, 1960.
This was a suit brought by R. D. Griffeth against Ales Ridley in the Superior Court of Heard County to establish prescriptive title to a private way over the defendant's land and to enjoin the defendant from interfering with the plaintiff's use and repair of the same. The defendant in his answer denied all the material allegations of the petition, and the case proceeded to trial before a jury, which found in favor of the plaintiff.
The defendant assigns error on the denial of his amended motion for a new trial on the general and nine special grounds.
1-4, 6, 7. These headnotes do not require any elaboration.
5. Special ground 8 assigns error on the following excerpt from the court's charge: "On the other hand, if you find that it has not been uninterrupted for use for more than 7 years and it's more than 15 feet wide and it's not the original feet laid out and that it has not been kept opened and in repair then it would be your duty to find in favor of the defendant [italics ours]." An excerpt from the charge of similar import is also assigned as error in special ground 9; it being insisted in each ground that the excerpts complained of authorized the jury to find for the defendant only if they found that all four of the elements necessary to establish prescriptive title to a private way were lacking in the instant case, whereas the absence of any one of them would demand a verdict for the defendant.
To this contention we agree. In order to acquire a prescriptive title to a private way over another's land, the burden of proof is on the prescriber to show that he has been in the uninterrupted use thereof for seven years or more, that it does not exceed fifteen feet in width, that it is the same number of feet originally appropriated, and that it has been kept open and in repair during such period. Johnson v. Sams, 136 Ga. 448 (2) ( 71 S.E. 891); First Christian Church at Macon v. Realty Investment Co., 180 Ga. 35 (1) ( 178 S.E. 303); Maddox v. Willis, 205 Ga. 596 ( 54 S.E.2d 632). If the prescriber fails to show any of these elements necessary to establish prescriptive title, he cannot recover. Collier v. Farr, 81 Ga. 749 ( 7 S.E. 860). Accordingly, while the trial court stated elsewhere in its charge that the jury must find the existence of all four of the prerequisite elements of prescriptive title, as set out above, in order to find for the plaintiff, its subsequent charge to the effect that they must find the absence of all of these things in order to find for the defendant, is erroneous and requires the grant of a new trial.
Judgment reversed. All the Justices concur.