A review of the transcript of the evidence does not disclose that a verdict was demanded for the defendants.
The plaintiff filed a complaint against two of his brothers to enjoin a trespass upon realty. The defendants then filed a counterclaim in which they sought to enjoin the plaintiff from interfering with their alleged private way across the plaintiff's lands as a means of ingress and egress to their lands. A mistrial was declared when the jury hearing the case was unable to reach a verdict. The appeal by the defendants enumerates as error the refusal to direct a verdict and the refusal to grant a judgment for the defendants notwithstanding the mistrial.
The defendants contend, under the provisions of Code 85-1401, that the evidence demands a finding that the brothers all obtained their respective tracts of land from the same grantor, their father, at the same time, and that by implication of law, since the use of such right of way is necessary to the enjoyment of their otherwise land-locked property, a verdict for them was demanded. They also contend that the evidence demanded a verdict for them based upon title by prescription. The plaintiff contends that the evidence would have authorized a verdict for him and, therefore, the failure to direct a verdict on to later grant a motion for judgment for the defendants notwithstanding the mistrial was not error.
1. One of the prime requisites to title by prescription of a private way is that the same private way be used the entire period necessary to establish the prescrIptive right. Compare Rothberg v. Peachtree Investments, Inc., 220 Ga. 776
, 778 (142 SE2d 264
). The plaintiff testified that parts of the alleged "private way" had been moved as much as five hundred feet from time to time and thus, this essential element, that the same private way be used for the entire period necessary to establish the prescriptive right, although contradicted by the defendants' evidence, was not without dispute so as to demand a verdict for the defendants.
2. The evidence as to the way of necessity was likewise not without conflict for there was evidence of another entrance to the lands claimed to be land locked which had been used through the years by various persons sufficiently to authorize the jury to determine that the defendants' land was not land locked.
3. The judgments of the trial court refusing to grant the defendants' motion for a directed verdict and the refusal to thereafter grant them a judgment notwithstanding the mistrial was not error for any reason enumerated.
Judgment affirmed. All the Justices concur.