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2018 Georgia Code 44-9-47 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 44-9-47 Case Law from Google Scholar Amendments to OCGA 44-9-47

TITLE 44 PROPERTY

Section 9. Easements, 44-9-1 through 44-9-92.

ARTICLE 3 PRIVATE WAYS

44-9-47. Motions and proceedings subsequent to judgment; payment of compensation; nonpayment as abandonment; effect of abandonment on subsequent application.

With respect to the judgment of the court in such case, any party may have all remedies provided by law, including a motion for a new trial, a motion for an appeal, a motion for judgment on the pleadings, or a motion for judgment notwithstanding the verdict. Before the judgment becomes final and after the determination of any motions or appeals, the compensation fixed by the jury shall be paid in cash into the registry of the court by the applicant; and, upon the failure to pay the compensation, the private way applied for shall be considered abandoned. Upon a motion made by any interested party and a notice of not less than ten days to the applicant for the private way, the court shall enter a judgment of abandonment accordingly. If the right to the private way is abandoned in this manner and, after notice to the applicant, the court so finds, no application for a private way over the same land shall thereafter be filed by the same applicant or his successor in title.

(Code 1933, § 83-106-A, enacted by Ga. L. 1967, p. 143, § 2; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

Former provision allowing for postponed payment after judgment unconstitutional.

- The former portion of O.C.G.A. § 44-9-47 allowing for 60 days to pay for a private way after the entry of judgment is unconstitutional, because the grant of the private way is made before the payment is required. Arnold v. Selected Sites, Inc., 229 Ga. 468, 192 S.E.2d 260 (1972).

When property right is taken or vested.

- No property right is taken from a property owner, nor vested in a private way petitioner, until after all of the rights have been finally established, the compensation is paid and the court makes such a "grant" by final judgment. Cline v. McMullan, 263 Ga. 321, 431 S.E.2d 368 (1993).

Payment before final judgment for private way.

- Requiring pre-appeal payment forces a petitioner for a private way to pay for that which the petitioner has not obtained and may not ever obtain. O.C.G.A. § 44-9-47 requires payment of the just and adequate compensation before the final judgment granting a private way is entered by the court but after all appeals have been exhausted. Cline v. McMullan, 263 Ga. 321, 431 S.E.2d 368 (1993).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Easements and Licenses, § 127 et seq.

C.J.S.

- 28A C.J.S., Easements, § 205 et seq.

Cases Citing O.C.G.A. § 44-9-47

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Cline v. McMullan, 263 Ga. 321 (Ga. 1993).

Cited 5 times | Published | Supreme Court of Georgia | Jul 12, 1993 | 431 S.E.2d 368, 93 Fulton County D. Rep. 2431

...itle 44. Although this may appear to be a logical interpretation, an examination of the language of Title 44 and the constitutional basis for Woodside reveals that tender was never meant to be a pre-condition to appeal in a private way action. OCGA § 44-9-47 outlines when and how a private way is granted to a petitioner: With respect to the judgment of the court in such case, any party may have all remedies provided by law, including a motion for a new trial, a motion for an appeal, a motion...
...ot ever obtain. The difference in the language of the two constitutional provisions, one referring to a taking of private property for public use and the other to a granting of a private way, explains why the legislature adopted the language in OCGA § 44-9-47 requiring payment of the just and adequate compensation before the final judgment granting a private way *324is entered by the court, but after all appeals have been exhausted. In contrast to Title 22, where the only issue on appeal from...
...Since nothing about the private way is fixed, the condemnor seeking the private way does not obtain any rights in the land until after all appeals have been exhausted and just compensation has been paid. That the granting of a private way does not occur until appeals have been exhausted is consistent with OCGA § 44-9-47 wherein the petitioner for a private way is directed to pay the valuation of the condemned property into the registry of the court “after the determination of any motions or appeals ....
...on has the opportunity to challenge the necessity, location and width of the private way. Additionally, the private way property owner can extinguish all claims to the private way if the petitioner fails to timely pay the adequate compensation (OCGA § 44-9-47)....
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Atlanta-East, Inc. v. Tate Mountain Assocs., Inc., 265 Ga. 742 (Ga. 1995).

Cited 2 times | Published | Supreme Court of Georgia | Oct 16, 1995 | 462 S.E.2d 613, 95 Fulton County D. Rep. 3216

...s not show without dispute that reasonable access exists over land lot 176, the trial court erred in granting Tate Mountain’s motion for summary judgment. 3. On remand, the parties should follow the procedure outlined in OCGA §§ 44-9-40 through 44-9-47....