Constitutional provision on compensation inapplicable.

- The constitutional provision which declares that private ways may be granted upon just compensation being first paid has no application to a private way acquired by prescription by seven years' continuous use of the way. Everedge v. Alexander, 75 Ga. 858 (1885).

No prescription against one who establishes way.

- A case in which the plaintiffs are claiming to use the private way of the defendant, established for defendant's private use and benefit and paid for by defendant, is not within the provisions of O.C.G.A. § 44-9-54. Puryear v. Clements, 53 Ga. 232 (1874).

No estoppel of grantor.

- If a grantor, after conveying land, continued to use a private way, the fact that the grantor had such a conveyance would not prevent him from acquiring under a private way by prescription. Carlton v. Seaboard Air-Line Ry., 143 Ga. 516, 85 S.E. 863, 1917A Ann. Cas. 497 (1915).

Tenant in common acquires no prescriptive right by use of way over the common property so long as all of the tenants have an undisputed use of the premises. Boyd v. Hand, 65 Ga. 468 (1880).

Railroad tracks "improved land" subject to seven-year prescription period.

- If the railroad was constructed and the tracks were made to cross a private way by means of a trestle, the land of the railroad company at such a point of intersection was "improved land" within the meaning of O.C.G.A. § 44-9-54, and the period of prescription would be seven years. Carlton v. Seaboard Air-Line Ry., 143 Ga. 516, 85 S.E. 863, 1917A Ann. Cas. 497 (1915).

Mere use of private railroad crossing not enough to acquire prescriptive rights.

- Property owner's mere use of a private railroad crossing was not enough for the owner to acquire prescriptive rights pursuant to O.C.G.A. § 44-9-54 because no written agreement or easement from the railway existed concerning the private crossing; the owner admitted that the owner's use of the private crossing had been with the permission of the railway, the crossing had been repaired and maintained throughout by the railway, and the fact that the railway restored the crossing so that the owner could continue to use the crossing was evidence that the railroad permitted, rather than forbade, continued use of the crossing. Yawn v. Norfolk S. Ry. Co., 307 Ga. App. 849, 706 S.E.2d 197 (2011).

Section not applicable to wild lands.

- O.C.G.A. § 44-9-54 cannot be construed to mean that seven years uninterrupted use of a way over wild or unimproved land will give title to the way by prescription, without bringing it into plain and irreconcilable conflict with O.C.G.A. § 44-9-41. Watkins v. Country Club, 120 Ga. 45, 47 S.E. 538 (1904).

Party setting up claim required to strictly follow law.

- While a right of private way over another's land may arise by prescription from seven years' uninterrupted use through improved lands, where a private way is claimed by prescription, the party setting up such a claim must be strictly within the requirements of the law. Hasty v. Wilson, 223 Ga. 739, 158 S.E.2d 915 (1967).

Where a private way is claimed by prescription, the parties setting up such a claim must bring themselves strictly within the requirements of the law. Brown v. Statham, 21 Ga. App. 101, 94 S.E. 273 (1917); Elliott v. Adams, 173 Ga. 312, 160 S.E. 336 (1931).

Easement by prescription not acquired where O.C.G.A.

§ 44-9-54 not complied with. - Defendant landowner, who had conveyed parcel to plaintiff landowner's predecessor in title without reserving any easement in deed, did not acquire an easement by prescription where adverse use could not begin until after the severance of the two estates and where the strip of land over which the easement is claimed was owned by the claimant until a time less than seven years prior to bringing of action by the plaintiff landowner seeking to enjoin defendant landowner from the continued use of the strip of land in question. Farris Constr. Co. v. 3032 Briarcliff Rd. Assocs., 247 Ga. 578, 277 S.E.2d 673 (1981).

To invoke provisions of O.C.G.A. § 44-9-54, the claimant must also be within O.C.G.A. § 44-9-1. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303 (1934).

To entitle one to a prescriptive right of way over the land of another, it must be shown that the prescriber has been in the uninterrupted use of a permanent road over the land, not exceeding 15 (now 20) feet in width, and that the prescriber has kept it open and in repair for seven years. Childers v. Holloway, 69 Ga. 758 (1882); Nott v. Tinley, 69 Ga. 766 (1882); Collier v. Farr, 81 Ga. 749, 7 S.E. 860 (1888); Johnson v. Sams, 136 Ga. 448, 71 S.E. 891 (1911).

To acquire a prescriptive right to a private way over land, it is necessary to show the uninterrupted use of a permanent way, not over 15 (now 20) feet wide, kept open and in repair for seven years. Raines v. Petty, 170 Ga. 53, 152 S.E. 44 (1930).

The acquisition of a private way, i.e., a right of ingress and egress over the land of another by prescription, rests upon a unique statutory foundation. Therefore, because plaintiff had not shown a likelihood of success on the claim that defendant has established a private way on debtor's property by prescription, the plaintiff's request for a preliminary injunction was denied. Metropolitan Life Ins. Co. v. Popescu, 172 Bankr. 691 (Bankr. N.D. Ga. 1994).

Use may originate in permission, yet ripen by prescription.

- Possession must be adverse in order to form the basis for prescription. A notable exception exists, however, in the case of private ways. The use may originate in permission, and yet may ripen by prescription. Burnum v. Thomas, 71 Ga. App. 690, 31 S.E.2d 925 (1944); Duncan v. Sluder, 204 Ga. 458, 50 S.E.2d 78 (1948).

The doctrine that prescriptive titles to the fee in real estate by seven years' possession cannot originate in consent, because the possession there must be adverse all the time, does not prevail or apply to a right of way, under O.C.G.A. § 44-9-54. Everedge v. Alexander, 75 Ga. 858 (1885).

Knowledge and acquiescence of owner is of very essence of right of way against owner. Everedge v. Alexander, 75 Ga. 858 (1885).

Prescriber must give notice.

- It is fundamental that prescription is to be strictly construed, and that the prescriber must give some notice, actual or constructive, to the individual against whom the prescriber intends to prescribe. Burnum v. Thomas, 71 Ga. App. 690, 31 S.E.2d 925 (1944).

When use originates by permission, prescription runs upon notification of changed position.

- When the use of a private way originates by permission of the owner, prescription does not begin to run until the user notifies the owner, by repairs or otherwise, that the user has changed position from that of a mere licensee to that of a prescriber. Burnum v. Thomas, 71 Ga. App. 690, 31 S.E.2d 925 (1944); Duncan v. Sluder, 204 Ga. 458, 50 S.E.2d 78 (1948); Nassar v. Salter, 213 Ga. 253, 98 S.E.2d 557 (1957); Hunt v. Parker, 221 Ga. 484, 145 S.E.2d 483 (1965).

One who seeks to ripen an absolute right to the use of a private way by prescription, instead of obtaining it by express grant, must, when that person enters with the consent of the owner, bring some affirmative notice to the owner, by making repairs or otherwise, of intention to prescribe through seven years' use. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303 (1934).

Owner of property adjacent to a bankruptcy debtor's private airport did not have a prescriptive easement to use the airport since the owner's use of the airport was permissive and any repairs or maintenance to the airport were not substantial enough to serve as notice to the debtor of an adverse claim. Flyboy Aviation Props., LLC v. Franck, 501 Bankr. 808 (Bankr. N.D. Ga. 2013).

Prescriber must show that way kept open and in repair during statutory period.

- In order to set up a prescriptive right of way, it is essential that the prescriber show not only that prescriber has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20) feet in width, and that it is the same number of feet originally appropriated, but that the prescriber has kept it open and in repair during this period. Rogers v. Wilson, 171 Ga. 802, 156 S.E. 817 (1931).

To acquire a private way by prescription it is essential that the prescriber keep the way in repair for the period of prescription. Charleston & W.C. Ry. v. Fleming, 118 Ga. 699, 45 S.E. 664 (1903).

The right of private way over another's land may arise by prescription from seven years' uninterrupted use through improved lands, but in order to set up this prescriptive right of way, it is essential that the prescriber show not only that one has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20) feet in width, and that it is the same number of feet originally appropriated, but that the person has kept it open and in repair during this period. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303 (1934); Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392 (1943).

In order for one to take or keep another's land as a road for private use, that one should be compelled to keep it open and in repair. Keeping it open and working it would be the best evidence of that person's intention to appropriate it for a road, and would put the owner upon notice that the person did intend to appropriate it. Burnum v. Thomas, 71 Ga. App. 690, 31 S.E.2d 925 (1944).

Though O.C.G.A. § 44-9-54 is silent as to the necessity for keeping open and in repair a private way, it has been held by the Supreme Court many times that these are essential requirements. Hardin v. Snow, 201 Ga. 58, 38 S.E.2d 836 (1946).

One of the essential requirements for the acquiring of a prescriptive right of way over the lands of another is that the party claiming such right has kept the way in repair. Sams v. Seaboard Air Line R.R., 218 Ga. 569, 129 S.E.2d 859 (1963).

In order to set up a prescriptive right of way, it is essential that the prescriber show not only that the prescriber has been in the uninterrupted use thereof for seven years or more, that it does not exceed 20 feet in width, and that it is the same number of feet originally appropriated, but also that the prescriber has kept it open and in repair during this period. Hasty v. Wilson, 223 Ga. 739, 158 S.E.2d 915 (1967).

Crux of repairs requirement lies in notice of adverse use.

- The crux of the requirement for repairs, or maintenance of the private way, lies not in the actual effectuation of repairs by the prescriber but in the notice of adverse use the performance of such repairs would give to the property owner. Rizer v. Harris, 182 Ga. App. 31, 354 S.E.2d 660 (1987), overruled on other grounds, Eileen B. White & Assocs. v. Gunnells, 263 Ga. 360, 434 S.E.2d 477 (1993); Georgia Pac. Corp. v. Johns, 204 Ga. App. 594, 420 S.E.2d 39 (1992); Keng v. Franklin, 267 Ga. 472, 480 S.E.2d 25 (1997).

Passive keeping in repair is notice, but inaction will not suffice; the expression "keeping in repair" originated in an age when private ways were unpaved and of necessity had to be repaired in order that the use thereof might be continued, and was then the equivalent of action and affirmative notice of an intention to prescribe, even where the use originated in consent. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303 (1934).

If repair made by landowner's permission, no prescriptive right acquired.

- Where the landowner was merely passive and made no objection to the use of and repairing the road, then such use and repairs thereon would be the proper basis for obtaining a prescriptive right to the road. But, if the use of and the repairs made on the road were by the permission of the landowner, then the plaintiff would not acquire a prescriptive right or title to the road. Burnum v. Thomas, 71 Ga. App. 690, 31 S.E.2d 925 (1944).

Because an adjoining landowner's use and repair of a landowner's road began with permission, a special master's finding that the adjoining landowner never asked for permission and that the owners never objected to their activities from 1968 to 2008 was inadequate to establish the adverse notice necessary to establish an easement by prescription. McGregor v. River Pond Farm, LLC, 312 Ga. App. 652, 719 S.E.2d 546 (2011).

It is not incumbent upon the prescriber to make repairs where none are needed. The requirement is limited to the making of such repairs as become necessary in order to make a way usable. Hardin v. Snow, 201 Ga. 58, 38 S.E.2d 836 (1946).

Mere passing over the land would not work prescription. Raines v. Petty, 170 Ga. 53, 152 S.E. 44 (1930).

To acquire a prescriptive right to a private way over land, it is necessary to show the uninterrupted use of a permanent way, not over 15 (now 20) feet wide, kept open and in repair for seven years. It is not sufficient to show that those claiming the prescription have been accustomed for more than seven years to pass over the land, changing the way as they saw fit, to avoid obstructions or for convenience. Short v. Walton, 61 Ga. 28 (1878).

That one has been in the habit of traveling across the land of another by a route more than 15 (now 20) feet wide, which was not kept in repair, and was not permanent in its location, will not suffice. Childers v. Holloway, 69 Ga. 758 (1882).

Merely passing through an alley in a city, belonging to the owner of the adjacent property and kept open by the owner for personal use or the use of the owner's tenants, will not ripen into a right to continue such passing by any lapse of time, no repairs being made nor any other acts being done so as to give notice to the owner of a claim of right to pass, as distinguished from a mere license or permission. Nassar v. Salter, 213 Ga. 253, 98 S.E.2d 557 (1957).

Location of the way must not shift from place to place as to any part of the route, but the way must occupy the same ground all the while and be kept in repair on that ground. Raines v. Petty, 170 Ga. 53, 152 S.E. 44 (1930).

Where way changed by petitioner, no prescriptive right.

- Where it appears that a private way claimed to exist by prescription was not permanent, but was obstructed and changed by the petitioner personally, the county erred in ordering it opened. Leathers v. Furr, 62 Ga. 421 (1879).

Where one who had for a period of more than two years used as a private way a strip of land belonging to another, then at the request of the owner abandoned this strip and, with the owner's consent, used in its stead as a private way, for more than five but less than seven years, another strip of land belonging to the owner, no prescriptive right to the use of either strip as a private way arose in favor of the person first mentioned. Peters v. Little, 95 Ga. 151, 22 S.E. 44 (1894).

Right to way acquired with unlocked gates effective.

- Where the plaintiff's right to a way in question in a proceeding was acquired with unlocked gates thereon, plaintiff's right to the way was just as effective, except for this impediment, as though plaintiff's right had been acquired without gates on the way. Deaton v. Taliaferro, 80 Ga. App. 685, 57 S.E.2d 215 (1950).

Average width not to exceed statutory limit.

- It will not alter the case that the average width of the road, considering its entire length, was not over 15 (now 20) feet. Childers v. Holloway, 69 Ga. 758 (1882).

Rights not defeated by wider places.

- Where a private way of the general width of 15 (now 20) feet, but with a few wider places, is laid out by the owner of the land, and the same is used for the statutory period, the existence of the wider places will not defeat the rights of the users of the way. Kirkland v. Pitman, 122 Ga. 256, 50 S.E. 117 (1904).

Where the general width of a private way does not exceed 20 feet, the mere existence of a few wider places will not defeat the right of the users; accordingly, the increased width of a private road as it formerly turned out in either direction into a public road could not be said, as a matter of law, to have caused a forfeiture of the rights of a petitioner for the removal by a railroad of obstructions from the road. Latham Homes Sanitation, Inc. v. CSX Transp., Inc., 245 Ga. App. 573, 538 S.E.2d 107 (2000).

By running around spot few hours until road repaired.

- Whilst the way is confined by the law to a track of 15 (now 20) feet, yet the mere running around one spot until the road there could be repaired within a few hours, which was done, and it was immediately resumed as the way again, is not an increase of width as to break the continuance of the use of it. Everedge v. Alexander, 75 Ga. 858 (1885).

Use need not be by one party, but may be continued by successor in title. Thompson v. Easley, 87 Ga. 320, 13 S.E. 511 (1891).

When way legally obtained and continued for statutory period, right becomes absolute.

- When the use of a private way has been legally obtained and is continued as long as seven years, of which the owner has had six months' knowledge without moving for damages, the right of use becomes absolute, and the owner is barred from claiming damages. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303 (1934).

Prescription passes with land.

- Where one has acquired a prescriptive right to a private way, whether the prescription be of common-law or statutory origin, the right to the way presumably passes with the land to which it is appurtenant. Nugent v. Watkins, 124 Ga. 150, 52 S.E. 158 (1905).

Where no evidence of repairs, no obstruction removed.

- Where the evidence did not show that the users of an alley had at any time made repairs to the alleged 15-foot (now 20-foot) alley as to which they claimed a prescriptive right of user, they were not entitled to have removed, under O.C.G.A. § 44-9-54, an obstruction which had been placed in the alley. Maddox v. Willis, 205 Ga. 596, 54 S.E.2d 632 (1949).

Applicant not entitled to judgment by proof that road closed without notice after year's use.

- Under a proceeding to cause obstructions to be removed from a private way, and alleging solely that the way was one established by prescription for more than seven years, the applicant is not entitled to a judgment by proof that the road has been in use as a private way for more than a year, and that the owner has closed it without giving to the common users 30 days' notice in writing, in order that they might take legal steps to have it made permanent, as required by O.C.G.A. § 44-9-56. Cowart v. Baker, 62 Ga. App. 502, 8 S.E.2d 732 (1940).

Prescriptive rights-of-way awarded.

- Where the evidence showed that defendant's predecessor-in-title never prevented the public from using the roads, and that plaintiffs never sought permission to do so, the repairs were extensive enough to put the owner on notice that others were using the road. Therefore, the landowners were required to remove obstructions from the private road and the plaintiffs were awarded prescriptive rights-of-way. Georgia Pac. Corp. v. Johns, 204 Ga. App. 594, 420 S.E.2d 39 (1992).

Prescriber using private way may legally remove obstructions.

- Where one has used a private way for more than 30 years without gates or other obstructions, the erection of gates or fences across the way by another would give the prescriber the right to have the obstructions removed in the manner provided by law. Hill v. Miller, 144 Ga. 404, 87 S.E. 385 (1915).

Obstruction of private way gives rise to damage action.

- The obstruction of a prescriptive private way would constitute an interference with a private right, and gives rise to a right of action in tort for damages from the alleged violation of the right. Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392 (1943).

Threatened obstruction prevented by injunction.

- To place an obstruction across a private way sufficient to prevent its use would constitute a nuisance, and the threatened obstruction may be prevented by an injunction in equity. A different case might be presented if the obstruction had already been placed across the private way, since the law provides a legal remedy for its removal. Hardin v. Snow, 201 Ga. 58, 38 S.E.2d 836 (1946).

Am. Jur. 2d.

- 25 Am. Jur. 2d, Easements and Licenses, § 45 et seq.

C.J.S.

- 28A C.J.S., Easements, §§ 14 et seq., 129, 145, 163.

ALR.

- Necessary parties defendant to suit to prevent or remove obstruction or interference with easement of way, 28 A.L.R.2d 409.

Acquisition of right of way by prescription as affected by change of location or deviation during prescriptive period, 80 A.L.R.2d 1095.

Right of owners of parcels into which dominant tenement is or will be divided to use right of way, 10 A.L.R.3d 960.

Right to maintain gate or fence across right of way, 52 A.L.R.3d 9.

Tacking as applied to prescriptive easements, 72 A.L.R.3d 648.

Scope of prescriptive easement for access (easement of way), 79 A.L.R.4th 604.