Where tenant permitted to use road, succeeding tenant cannot close road without giving notice.

- Where a landlord leases a farm and permits the tenant to open thereon a road for the tenant's convenience and the convenience of the community, and, after the expiration of the lease and the removal of the tenant from the land, the tenant and others are permitted for more than one year to use the road, another tenant who has succeeded the first cannot, though so authorized by the landlord, close the road without giving the 30 days' notice required by O.C.G.A. § 44-9-56. Dodson v. Scarborough, 110 Ga. 4, 35 S.E. 291 (1900).

Those who travel over a route may acquire inchoate right before they secure perfect title. Even incomplete and partial prescription will prevent the owner from obstructing a private way which has been used for 12 months, unless the first gives 30 days' notice in writing of that intention to the common users. Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392 (1943).

Way need not be established.

- In order to entitle one who has used and maintained a road as a private way for as much as one year to the notice prescribed by O.C.G.A. § 44-9-56, it is not necessary that the way so used and maintained should have been actually established as a private way, but such use for only that limited period is sufficient to give to the common user such an inchoate right as will entitle the user to the notice mentioned before the landowner will be permitted to close the way. Ford v. Waters, 27 Ga. App. 83, 107 S.E. 351 (1921).

Prescription is not standard.

- The right defined in O.C.G.A. § 44-9-56 is not dependent upon such use as could ultimately result in prescription. Barnes v. Holcomb, 35 Ga. App. 713, 134 S.E. 628 (1826).

Way claimed must not vary.

- The right defined in O.C.G.A. § 44-9-56 does not require such use as could ultimately result in prescription. However, the use required by O.C.G.A. § 44-9-56 must resemble a prescriptive use in at least one respect: the way claimed must not vary from the location originally appropriated. Jordan v. Ridgdill, 120 Ga. App. 63, 169 S.E.2d 675 (1969).

Petitioner proceeding on theory of perfect prescriptive way must recover on case laid.

- Since the petitioner proceeded in pleadings on the theory of a perfect prescriptive right of way, petitioner must recover on the case as laid; no judgment was obtainable in petitioner's favor on the ground that no written notice had been given by the owner of an intention to close the driveway. Duncan v. Sluder, 204 Ga. 458, 50 S.E.2d 78 (1948).

Right to have way made permanent is conditional upon proceedings before ordinary (now superior court) after the required notice is given. Moore v. McConnell, 105 Ga. App. 758, 125 S.E.2d 675 (1962).

Burden of proving notice is upon one whose duty it is to give it. Powell v. Amoss, 85 Ga. 273, 11 S.E. 598 (1890).

Closing of way not justified by remedy to prevent others from misusing land.

- That the owner may have a remedy to prevent other people who have discontinued using a part of the private way from running over the shrubbery in owner's yard does not justify the owner in seeking to close the private way as it has actually existed for more than 12 months. Riggs v. Martin, 198 Ga. 824, 33 S.E.2d 15 (1945).

Removal of obstruction from way may be based upon both O.C.G.A. §§ 44-9-56 and 44-9-59. Moore v. McConnell, 105 Ga. App. 758, 125 S.E.2d 675 (1962).

Remedy provided in O.C.G.A. § 44-9-59 is applicable to prescriptive ways and private ways used for one year where the landowner fails to give 30 days' notice under O.C.G.A. § 44-9-56. Johnson v. Williams, 138 Ga. 853, 76 S.E. 380 (1912); Ford v. Waters, 27 Ga. App. 83, 107 S.E. 351 (1921).

Applicant alleging prescription not entitled to judgment by proof that road closed without notice.

- 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. Nugent v. Watkins, 129 Ga. 382, 58 S.E. 888 (1907). See also Gardner v. Swann, 114 Ga. 304, 40 S.E. 271 (1901); Fraley v. Nabors, 131 Ga. 457, 62 S.E. 527 (1908); Cowart v. Baker, 62 Ga. App. 502, 8 S.E.2d 732 (1940).

Jury instructions.

- In a trespass action, where there was no objection to the court's failure to charge the defendant's request regarding O.C.G.A. § 44-9-56 and the existence of the roadway was continually disputed at trial, the failure to give such instruction did not work a gross injustice so as to deprive the defendant of a fair trial. Milam v. Attaway, 195 Ga. App. 496, 393 S.E.2d 753 (1990).

Cited in Elliott v. Adams, 173 Ga. 312, 160 S.E. 336 (1931); Burton v. Atlanta & W.P.R.R., 206 Ga. 698, 58 S.E.2d 424 (1950); Moon v. Jones, 101 Ga. App. 79, 113 S.E.2d 159 (1960); Hunt v. Parker, 221 Ga. 484, 145 S.E.2d 483 (1965); Thomas v. Douglas, 165 Ga. App. 128, 299 S.E.2d 605 (1983).

Am. Jur. 2d.

- 25 Am. Jur. 2d, Easements and Licenses, § 110.

C.J.S.

- 28A C.J.S., Easements, § 117.