O.C.G.A. § 44-8-10 (2019)

Annotations

Cross references. Licenses for toll roads and bridges issued by county or municipality, § 36-6021.

JUDICIAL DECISIONS Strict construction of franchise grants. - Grants of exclusive privileges to a corporation or an individual are to be strictly construed. McLeod v. Burroughs, 9 Ga. 213, 1851 Ga. LEXIS 1 (1851). No constitutional right to ferry monopoly if not in contract. - Where the holder of a franchise has no contract with the state for a monopoly, the exclusive privilege which the holder had been fortunate enough to enjoy before a rival is chartered is not property in the constitutional sense; and the owner is not entitled to compensation when such privilege is taken away. State Hwy. Bd. v. Willcox, 168 Ga. 883, 149 S.E. 182, 1929 Ga. LEXIS 264 (1929). Legislature may give second franchise. - When the state grants a franchise that is not in its terms exclusive, it may subsequently grant a competing franchise that may utterly destroy the value of the first franchise, without incurring any obligation to make compensation. State Hwy. Bd. v. Willcox, 168 Ga. 883, 149 S.E. 182, 1929 Ga. LEXIS 264 (1929). Without unconstitutional impairment of contract obligations. - A grant of a ferry franchise to meet the public convenience is not an exclusive grant that will, on account of the prohibition against impairing the obligations of contracts, preclude the legislature from granting a bridge franchise detracting

from its value. State Hwy. Bd. v. Willcox, 168 Ga. 883, 149 S.E. 182, 1929 Ga. LEXIS 264 (1929). No damages for loss of profits. - Where a franchise has been granted solely for public convenience, there can be no damages for its depreciating in value from the subsequent grant of a similar franchise. State Hwy. Bd. v. Willcox, 168 Ga. 883, 149 S.E. 182, 1929 Ga. LEXIS 264 (1929). State can condemn land for toll bridges or ferry. - The state can grant franchises to individuals or corporations to build toll bridges over streams, or to operate ferries over the same for toll. The grant of a franchise to do either is not exclusive and does not prevent the legislature from granting another franchise for either purpose. The legislature can condemn land for either purpose; and, if the taking of land does not prevent the exercise of the prior franchise, the same is not such taking of the property of the holder of the prior franchise as will entitle the holder to compensation. State Hwy. Bd. v. Willcox, 168 Ga. 883, 149 S.E. 182, 1929 Ga. LEXIS 264 (1929). Without paying first franchise for lost profits. - Loss of profits in operating public ferry, resulting from condemnation of land for bridge on public highway, not recoverable. State Hwy. Bd. v. Willcox, 168 Ga. 883, 149 S.E. 182, 1929 Ga. LEXIS 264 (1929).

RESEARCH REFERENCES Am. Jur. 2d. 35 Am. Jur. 2d, Ferries, §§ 1-9, 13 et seq., 28, 32, 33. 36 Am. Jur. 2d, Franchises for Public Entities, § 27 et seq. 39 Am.

Jur. 2d, Highways, Streets, and Bridges, §§ 46 et seq., 61, 110, 153. 40 Am. Jur. 2d, Highways, Streets, and Bridges, § 619. 78 Am. Jur. 2d, Waters, §§ 28, 41, 113 et seq.

Am. Jur. Pleading and Practice Forms. 12 Am. Jur. Pleading and Practice Forms, Ferries, § 3. C.J.S. 37 C.J.S., Franchises, § 1 et seq. 65 C.J.S., Navigable Waters, §§ 25 et seq., 51 et seq. 93 C.J.S., Waters, § 20 et seq. ALR. Power of public service commission to increase franchise rates, 3 A.L.R. 730; 9 A.L.R. 1165; 28 A.L.R. 587; 29 A.L.R. 356. May paramount right of public to improve navigability of stream without compensating riparian owner for resulting damage be extended to improvements for purposes not in aid of navigation, 18 A.L.R. 403.

Right in respect of navigable waters as franchise subject to taxation, 36 A.L.R. 1523. Competition by grantor of nonexclusive franchise, or provision therefor, as violation of constitutional rights of franchise holder, 114 A.L.R. 192. Validity and construction of restrictive covenant not to compete ancillary to franchise agreement, 50 A.L.R.3d 746. Validity, construction, and effect of clause in franchise contract prohibiting transfer of franchise or contract, 59 A.L.R.3d 244. Liability for interference with franchise, 97 A.L.R.3d 890.

CHAPTER 9 EASEMENTS Sec.

Article 1 In General Sec.

Methods of acquiring private ways. Acquisition of easement of light and air. Right of lateral support from adjoining land; right to make excavations up to boundary line; notice to adjoining landowner; standard of care. Parol license; when revocable; when easement running with land. Cessation of easement of necessity upon purchase of land providing access to highway. Loss of easement by abandonment or nonuse. Effect of sale of property for taxes or assessments on easements or rights of way. Article 2

Solar Easements

Short title. Legislative findings and declaration of policy. Establishment of solar easements. Contents of solar easements.

Article 3

Private Ways

Authority of superior court to grant private ways; filing of petition as declaration of necessity; when proceeding enjoined. Contents of petition; manner of service and advertisement; fees. Selection of assessors.

Show cause order; selection of assessors; hearing before assessors. Appeals from award of assessors; jury trial. Maintenance of private way by condemnor; failure to maintain as abandonment. Determination of amount of compensation and other issues by jury; payment and disposition of damages. Motions and proceedings subsequent to judgment; payment of compensation; nonpayment as abandonment; effect of abandonment on subsequent application. Agreements between parties as to payment of compensation. Establishment of private way by agreement between parties. Recording of private way; protection of owner’s use. Establishment of private way by several landowners; duties and privileges of subsequent vendees. Establishment and apportionment of private way by several landowners. Establishment of private way over wild lands without notice to landowner; assessment of damages after notice. Establishment of private way by prescription. Establishment of private way by prescription; when owners barred from damages. Notice of closing of private way after one year’s use. Limitation on use of private ways for specific commercial purposes.

Sec.

Sec. Petition to use another’s landing. Obstructions; proceedings for removal; petition; rule nisi; order; appeal; fees. Conditions for converting private ways into public roads.

Article 4

Rights of Way for Mining, Quarrying, and Other Businesses

Obtaining rights of way for mining, quarrying, and other business. Appointment of arbitrators in right of way disputes. Arbitration of requests for diversions of watercourses. Right of mine owner to control water power with canal or dam; damages to inter-

Cross references. Duties of department as to scenic rivers, § 12-5-353.

vening landowners; application to probate court for such right. Right to drain mine, carry off ore or transport items over adjoining land; compensation of landowner; application for such right; proceedings. Application of article to lessee of mine. Amount of water allowed to be withdrawn from stream above mill or factory by mine owner or lessee. Article 5 Timber Tramways

Petition for construction of tramway. Proceedings to lay out way; maximum width. Abandonment; effect.

Acquisition of property for transportation purposes generally, T. 32, C. 3.

RESEARCH REFERENCES Am. Jur. Proof of Facts. Abandonment of Easement, 3 POF2d 647. Intent to Create Negative Easement, 5 POF2d 621. Wrongful Interference with Right of Way, 32 POF2d 389. Extent of Easement over Servient Estate, 33 POF2d 669. Establishment of Private Prescriptive Easement, 2 POF3d 125, 197. Easements - Existence of Way of Necessity, 11 POF3d 601. Proof of Intent to Abandon Easements, 53 POF3d 519.

Grantor’s Intent to Create Reciprocal Negative Easement by Common Development Scheme of Subdivision, 62 POF3d 1. Permissive Possession or Use of Land as Defeating Claim of Adverse Possession or Prescriptive Easement, 68 POF3d 239. Proof of Adjoining Landowner’s Malicious or Unreasonable Construction of Fence, 73 POF3d 1. Proof of Extent of Easement of Way Created by Express Grant or Reservation, 81 POF3d 199.

ARTICLE 1 IN GENERAL Law reviews. For article surveying Georgia cases in the area of real property from June 1977

through May 1978, see 30 Mercer L. Rev. 167 (1978).

RESEARCH REFERENCES ALR. Respective rights of adjoining owners as to pumping oil, 5 A.L.R. 421. Respective rights of owners of different parcels into which land subject to an oil and gas lease has been subdivided, 5 A.L.R. 1162; 16 A.L.R. 588; 64 A.L.R. 634. Right to remove or rebuild fence separating one’s land from his neighbor’s land, 8 A.L.R. 1644. Property rights of abutting owners in trees cut or removed from street or highway, 9 A.L.R. 1269. Right of co-owner of a party or division wall to remove or demolish his own building, 9 A.L.R. 1329. Duty of one removing mineral under highway to support surface, 9 A.L.R. 1333. Implied easement of light and air over private alley or right of way, 9 A.L.R. 1634. Interference with easement of light, air, or view by structure in street or highway as ground for injunction at instance of abutting owner, 40 A.L.R. 1321. Precipitation of rainwater or snow from a building upon adjoining premises, 48 A.L.R. 1248. Reservation by grantor of the right to require payment for existing party wall when used, 52 A.L.R. 494. Liability of abutting owner or occupant for condition of part of private driveway which is within street, 59 A.L.R. 441. Right of abutting owner to complain of misuse of public park or violation of rights or easements appurtenant thereto, 60 A.L.R. 770. Liability for damage to person or property by fall of tree, 72 A.L.R. 615. Right and remedy of owner whose land is drained of oil or gas which runs to waste through well on land of another, 85 A.L.R. 1154. Rights in respect of street number or street name, 98 A.L.R. 1213.

What amounts to use of party wall which will impose obligation to contribute to cost thereof, 113 A.L.R. 471. Spite fences and other spite structures, 133 A.L.R. 691. Duty and liability of owner in respect of lateral or surface support as affected by excavation, or other conditions, created by his predecessor in title, 139 A.L.R. 1267. Adjoining owner’s use of wall standing on or near dividing line as imposing obligation to contribute to cost, where he was not party to oral agreement or unrecorded written agreement under which it was erected, 140 A.L.R. 1424. Visible easement rule as applicable to reciprocal or cross easements resulting from common development and use of adjoining properties in different ownership, 155 A.L.R. 543. Liability for overflow or escape of water from reservoir, ditch, or artificial pond, 169 A.L.R. 517. Use of party wall for nonstructural purposes, 2 A.L.R.2d 1135. Right to increase height of party wall, 24 A.L.R.2d 1053. Liability of employer for injury to adjoining realty resulting from excavation work by independent contractor on his premises, 33 A.L.R.2d 111. Encroachment of structure on or over adjoining property or way as rendering title unmarketable, 47 A.L.R.2d 331. Easements: way by necessity where property is accessible by navigable water, 9 A.L.R.3d 600. Rights and liabilities of adjoining landowners as to trees, shrubbery, or similar plants growing on boundary line, 26 A.L.R.3d 1372. Locating easement of way created by necessity, 36 A.L.R.4th 769. Encroachment of trees, shrubbery, or other vegetation across boundary line, 65 A.L.R.4th 603.

Liability for spread of fire intentionally set for legitimate purpose, 25 A.L.R.5th 391.

Neighborly accommodation as defense against adverse possession or prescriptive easement, 56 A.L.R.7th 8.