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Injunction. Heard Superior Court. Before Judge Boykin. March 5, 1960.
ALMAND, Justice.
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.
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.
This was a suit brought by R. D. Griffeth against Mes Ridley in the Superior Court of Heard County to establish preseciptive 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.
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.
Shirley C. Boykin, William P. Johnson, Frank L. Garreld, contra.
Aubrey W. Gilbert, Gilbert & Head, for plaintiff in error.
Saturday May 23 00:20 EDT

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