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User Name: Emmanuel Ortega

Date and Time: Tuesday, August 20, 2019 7:22:00 PM PDT


Job Number: 95454757

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1. Holmes v. Jones, 80 Ga. 659


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Search Terms: 7 S.E. 168
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Emmanuel Ortega
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Holmes v. Jones
Supreme Court of Georgia
March, 1888, Decided
No Number in Original

Reporter
80 Ga. 659 *; 7 S.E. 168 **; 1888 Ga. LEXIS 215 ***
provided for abatement in the method sought. The court
HOLMES et ux. vs. JONES et ux.
further held that the questions whether at the time the
property was divided the road was a way of necessity,
Prior History: [***1] Private ways. Jurisdiction. Justice
whether it continued to be, and whether it was
courts. Ordinary. Before Judge FAIN. Dade superior
abandoned were matters of fact for the jury, which they
court. September term, 1887.
well decided in favor of the inner proprietor.
Reported in the decision.
Outcome
Disposition: Judgment affirmed. The court affirmed the judgment.

Core Terms Syllabus


public road, obstruction, proprietors, nuisance, abate,
magistracy, intestate, temporary, inner The obstruction of a private way is a private nuisance,
for the abatement of which the magistrate of the district
Case Summary has jurisdiction, though the ordinary may also have
concurrent jurisdiction.

Procedural Posture Whether a way in use at the time lands were divided
Outer proprietors sought review of a judgment of the amongst the heirs at law of the deceased proprietor of
Dade Superior Court (Georgia), which overruled an extensive tract, was, in fact, a way of necessity, and
certiorari and affirmed a decision of a court of ordinary so regarded by the parties at interest, and whether its
in favor of complainant inner proprietor in an action to continuous use was contemplated, and whether it was
abate a nuisance. subsequently abandoned in consequence of the
opening and the use for a time of a new way, are all
Overview questions of fact, and in the present case they were well
An intestate owned certain real estate. During his decided by the appropriate tribunal.
lifetime, a certain road was kept open for many years as
a way to reach the public road from the home settlement May 14, 1888.
on the premises. After the intestate died, the property
was divided amongst the intestate's heirs, and at the Counsel: W. U. & J. P. JACOWAY, by R. J. MCCAMY,
time of the division the road was open and used. The for plaintiffs in error.
outer proprietors later closed the road, and the inner LUMPKIN & BROCK, by brief, contra.
proprietor, who occupied the old homestead and was
excluded from using the road by an obstruction, sued Judges: Bleckley, Chief Justice.
out a process before the magistracy of his district to
abate the obstruction as a nuisance. The jury found for Opinion by: BLECKLEY
the inner proprietor, and the superior court affirmed. The
court affirmed, holding that the magistracy had Opinion
jurisdiction pursuant to a Georgia statute because the
case was one of private nuisance, and the statute

Emmanuel Ortega
Page 2 of 2
80 Ga. 659, *659; 7 S.E. 168, **168; 1888 Ga. LEXIS 215, ***1

[*659] [**168] BLECKLEY, Chief Justice.

Certain real estate, embracing one or more plantations,


belonged to an intestate, and during the lifetime of the
intestate, a certain road [***2] had been kept open for a
great many years, as a way to reach the public road
from the home settlement on the premises. The property
was divided amongst the heirs at law; and at the time of
the division this road was open and used. It continued
open for some time afterwards, and then another road
was opened, for temporary use the evidence indicates;
and after it had been used some two years, the old way
was closed by the outer proprietors, the ones next to the
public road; the inner man, the one that occupied the old
homestead, [*660] was excluded from its use by an
obstruction; and he sued out a process before the
magistracy of his district to abate this obstruction as a
nuisance. Evidence was taken, and the jury found that it
was a nuisance and should be abated. That was carried
to the superior court by certiorari, and the certiorari,
upon a hearing, was overruled or dismissed, the
judgment below being thereby affirmed.

The question is made, in the argument, that there was


no jurisdiction in this magistracy to proceed as to such a
road as this. We think otherwise. The jurisdiction may
have been concurrent in the ordinary, possibly, but it is
the case of a private nuisance, [***3] and falls within
the statute, as has been ruled heretofore by this court,
for abatement in this method.

Then it is said that there was no legal right of way in


favor of this inner proprietor. That would depend, of
course, upon the facts. If at the time of the division of
this property, it was in the contemplation of all these
parties that this road should remain where it was, it was
treated as a way of necessity, and ought to have been
permanent, and the proprietors next to the public road
would have no right to close it. That was one of the
questions for the jury. The jury found that it was a way
and continued to be a way; and they passed also on the
question of its abandonment and the temporary
substitution of the new road for it. All these were matters
of fact for the jury, which they seem to have decided,
and well decided, in favor of the complainant below, the
party that instituted proceedings to remove the
obstruction. We think the court did right in leaving their
verdict to stand

Judgment affirmed.

End of Document

Emmanuel Ortega

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