Opinion
38041.
DECIDED JANUARY 21, 1960.
Action to remove obstructions from alley. Fulton Superior Court. Before Judge Moore. September 22, 1959.
Leonard Pennisi, for plaintiff in error.
T. B. Higdon, contra.
The summary remedy afforded by Code § 83-119 giving the ordinaries of the State jurisdiction of cases seeking the removal of obstructions in a private way does not apply to a public street or alley. Where a petition for removal of such obstructions from an alley fails to allege whether the alley is a public or private way, especially after removal by amendment of all allegations of the petition referring to it as a private way, the alley must, as against a motion to dismiss in the nature of a general demurrer, be construed to be a public alley, as to which the ordinary has no jurisdiction.
DECIDED JANUARY 21, 1960.
Earl W. Moon, Jr., brought a petition before the Ordinary of Fulton County against Geneva Jones seeking removal of certain obstructions across a private way. Upon demurrer by the defendant he amended the petition to strike the words "private way" wherever they appeared and to substitute therefor the word "alley." The legal description of the plaintiff's two lots showed them as abutting in the rear on an alley 15 feet in width which had been open more than 50 years, and open for the use of the property owners in the block since 1941, and which the defendant had obstructed by erecting steel posts and extending her fence more than halfway across the alley. The ordinary rendered judgment for the plaintiff, and the defendant appealed to the superior court. A motion to dismiss the case was there sustained, and this judgment is assigned as error.
1. On motion to dismiss in the nature of a general demurrer the burden is upon the plaintiff to allege facts which will entitle him to recover, including the jurisdiction of the court in which his action is brought, and the pleadings will be strictly construed against him. The ordinary has no jurisdiction to remove obstructions from areas except those designated as private ways (Code § 83-119) and these private ways may originate either in prescription (Code § 83-112) and as ways which have been used for as much as a year and no notice to close has been given (Code § 83-114). Johnson v. Williams, 138 Ga. 853 (2) ( 76 S.E. 380). An alley which is not designated as either public or private may be either. If the former, it is the same as a public street; if the latter, it is the same as a private way. See Scott v. Reynolds, 70 Ga. App. 545, 548 ( 29 S.E.2d 88). Proof that the owner of land by a recorded plat divides it into lots, streets and alleys, and sells the land in reference to such plat is proof of the owner's offer to dedicate such streets and alleys to public use. Scott case, supra, page 551. Proof that such alley has been used by the public in general for more than 20 years is sufficient to show an implied acceptance by the public of the offer to dedicate, so as to constitute the alley a public alley. Henderson v. Ezzard, 75 Ga. App. 724 (2) ( 44 S.E.2d 397). Where the alley is not designated as either public or private, according to Black's Law Dictionary, "it means a public way unless the word `private' is prefixed or the context requires a different meaning." In 3 C. J. S. p. 885 it is stated: "The word has reference more particularly to the ways or thoroughfares of towns and cities, and, when not qualified by the term `private' is conventionally understood in its relation to towns or cities as a narrow street, passage, or way in common use . . . and the term . . . will be taken to mean a public alley" unless a different connotation is required.
The plaintiff here struck from his petition all words indicating the way in question was a private way or alley, and failed to designate whether he referred to a private or public way. Since the word "alley" when not otherwise designated must be taken to mean a public rather than a private way, the petition here fails to show facts which would give the ordinary jurisdiction to remove the obstruction complained of. Accordingly, the judge of the superior court did not err in sustaining the motion to dismiss the petition.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.