O.C.G.A. § 44-9-40 (2019)

Annotations

Law reviews. For article surveying Georgia cases in

the area of real property from June 1979 through June 1980, see 32 Mercer L. Rev. 175 (1980). For survey article on real property law, see 59 Mercer L. Rev. 371 (2007). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007). For summary review article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008).

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions decided under former Code 1910, §§ 807 and 808 and Code 1933, §§ 83-101 and 83-102 are included in the annotations for this Code section. Former section exclusive provision giving jurisdiction to grant private ways. - There is no other provision of law which gives the ordinary (now probate court) jurisdiction to grant private ways over the lands of others, except as indicated in this former section. Porter v. Foster, 146 Ga. 154, 90 S.E. 967, 1916 Ga. LEXIS 636 (1916). Existing easements not contemplated. - The statutory provisions giving the ordinary (now probate judge) the authority to grant private ways over the lands of others to individuals to go to and return from their farms or places of residence contemplate the grant of easements that did not exist, and provide due notice and a hearing for the owner of the land before property is taken, and compensation for the injury done. Porter v. Foster, 146 Ga. 154, 90 S.E. 967, 1916 Ga. LEXIS 636 (1916). Law does not authorize probate judge to declare private way to be permanent. Herndon v. Strickland, 86

Ga. 323, 12 S.E. 642, 1890 Ga. LEXIS 241 (1890). Proceedings to acquire easements different from proceedings to remove obstructions. - In proceedings under the former provisions to acquire private easements, the questions involved are different from those in a proceeding under O.C.G.A. § 44-9-59, to remove obstructions from an existing private way, and the notice required to be given to the landowner in each instance is different, as is also the judgment to be rendered by the ordinary (now probate judge). Porter v. Foster, 146 Ga. 154, 90 S.E. 967, 1916 Ga. LEXIS 636 (1916). Private way cannot exceed 20 feet in width. - An applicant cannot establish any right whatsoever in a private way if the width of the pathway exceeds the statutory 20-foot limit at any point when originally claimed by the applicant. Rizer v. Harris, 182 Ga. App. 31, 354 S.E.2d 660, 1987 Ga. App. LEXIS 1613 (1987). Because there was no practical way to limit the plaintiff’s use of the driveway entrance to 20 feet authorized by law, and this conflicted with the rule that private ways under O.C.G.A. § 44-9-40(a) cannot exceed 20 feet in width, the trial court did not err by ruling that the plaintiff was not

entitled to seek a private way of necessity pursuant to § 44-9-40 in the manner in which the plaintiff pled. Beamer Rentals, Inc. v. Greentree Investment Partners, LLC, 361 Ga. App. 871, 864 S.E.2d 184, 2021 Ga. App. LEXIS 519 (2021). Evidence was not inadequate as to the width of a private way not exceeding 20 feet, where in addition to a nonexpert witness’ guess that it was between 15 and 20 feet, several witnesses testified that a gate spanning the road was 16 feet wide and a tenant on the property testified the road had not been maintained wider than the 16 feet during tenancy, and although defendant’s expert testified that the roadbed varied from 24 to 31 feet in width, the expert stated that outside the 16-foot strip maintained by the tenant, the only evidence that more footage was being used was some old levelling now covered by grass and scrub trees and the expert could only guess as to how recently the old levelling apart from the 16-foot strip had been bulldozed. Rizer v. Harris, 182 Ga. App. 31, 354 S.E.2d 660, 1987 Ga. App. LEXIS 1613 (1987). Power under this former section is restricted to “cases of necessity.” Chattanooga, Rome & S.R.R. v. Philpot, 112 Ga. 153, 37 S.E. 181, 1900 Ga. LEXIS 78 (1900). Way sought must be absolutely indispensable. - In a proceeding under the former provisions of this section, to condemn a private way over the lands of another person, in order to entitle the applicant to relief, it must appear that the way sought is absolutely indispensable as a means of reaching property. Wyatt v. Hendrix, 146 Ga. 143, 90 S.E. 957, 1916 Ga. LEXIS 631 (1916). No choice of way where reasonable way tendered. - The applicant is not entitled to choose route where the landowner has tendered a way reasonably convenient to both parties. Wyatt v. Hendrix, 146 Ga. 143, 90 S.E. 957, 1916 Ga. LEXIS 631 (1916). Cases of necessity do not arise except way sought is absolutely indispensable to the applicant as a means of reaching the applicant’s property. If there is in existence a way suitable for all the purposes for which the property is to be

used, and can presently be used, although owned by another, a case of necessity does not arise, even though such a way may be less convenient than the one proposed. Moore v. Dooley, 240 Ga. 472, 241 S.E.2d 232, 1978 Ga. LEXIS 765 (1978). Trial court’s denial of a condemnation of easement action was affirmed as the trial court’s finding of fact that two alternate routes existed to the landlocked property was not clearly erroneous, even though the owners of the landlocked property claimed that they could not get permission to use the two alternate routes. Blount v. Chambers, 257 Ga. App. 663, 572 S.E.2d 32, 2002 Ga. App. LEXIS 1254 (2002). Proof of necessity of private way. - Even though there was evidence of two other potential routes to petitioner’s property, there was at least some evidence to show necessity upon which the jury could conclude that the road was necessary to access the property. Hensley v. Henry, 246 Ga. App. 417, 541 S.E.2d 398, 2000 Ga. App. LEXIS 1246 (2000). Under statute that was in derogation of the common law, and, thus, was strictly construed, the filing of the condemnor’s petition for a right of way across the condemnee’s property was deemed to be a declaration of necessity, and, thus, the evidentiary hearing held in the trial court was not a trial and did not involve a final judgment; rather, the hearing was a show cause hearing that placed the burden on the condemnee to show why a right of way should not be granted based on the declaration of necessity put forth in the petition. Morrison v. Derdziak, 255 Ga. App. 89, 564 S.E.2d 500, 2002 Ga. App. LEXIS 486 (2002). Owner was entitled to a condemnation of a private way of necessity under O.C.G.A. § 44-9-40(b) over the tip of the owner’s triangle shaped lot, as the owner’s only access to the lake front property was either by boat or by foot on a path of several hundred feet, which was unreasonable, the owner did not cause the lot to be landlocked, and there was no undue inconvenience to the condemnees, since a survey error caused the strange lot shape. Pierce v. Wise, 282 Ga. App. 709, 639 S.E.2d 348, 2006 Ga. App. LEXIS 1392 (2006), cert. denied, No. S07C0569, 2007 Ga. LEXIS 340 (Ga. Apr. 24, 2007).

Because the evidence presented at trial made it clear that a lessor conveyed no ownership interest to a tenant, leaving that tenant with only a right to possess and use the leased property, and more specifically, a usufruct, the tenant did not own an interest in the property, and thus could not pursue an easement by necessity under O.C.G.A. § 44-9-40; hence, summary judgment in the lessor’s favor as to this issue was upheld on appeal. Read v. Ga. Power Co., 283 Ga. App. 451, 641 S.E.2d 680, 2007 Ga. App. LEXIS 91 (2007), cert. denied, No. S07C0864, 2007 Ga. LEXIS 390 (Ga. May 14, 2007). Trial court erred in dismissing a property owner’s statutory claim for an easement of necessity for failure to state a claim because the complaint sufficiently alleged that the owner had used a half mile of a private road on the defendant’s land to access the owner’s property since purchasing that land in 2006, that without such access, the owner had no legal means of ingress, and the owner had no ability to negotiate and acquire deeded fee simple title to roads to access the owner’s property. S-D RIRA, LLC v. Outback Prop. Owners’ Ass’n, 330 Ga. App. 442, 765 S.E.2d 498, 2014 Ga. App. LEXIS 846 (2014), cert. denied, No. S15C0643, 2015 Ga. LEXIS 341 (Ga. May 11, 2015), cert. denied, No. S17C0778, 2017 Ga. LEXIS 509 (Ga. June 5, 2017). Condemnor required to show no other “reasonable means of access.” - To condemn a private way over another’s land the test for necessity is not “absolutely indispensable” test but the statutory test which requires a condemnor to show no other “reasonable means of access.” Kellett v. Salter, 244 Ga. 601, 261 S.E.2d 597, 1979 Ga. LEXIS 1341 (1979). Private way created by necessary implication is wholly distinct from “compulsory purchase and sale.” Calhoun v. Ozburn, 186 Ga. 569, 198 S.E. 706, 1938 Ga. LEXIS 653 (1938). Where condemnor establishes that only access to property is by navigable waters, he has established a prima facie case that the condemnor has no reasonable means of access. The burden then shifts to the condemnee to go forward

with the evidence and demonstrate that access to the navigable waters constitutes a reasonable means of access under the peculiar circumstances of the case. International Paper Realty Corp. v. Miller, 255 Ga. 676, 341 S.E.2d 445, 1986 Ga. LEXIS 640 (1986). Right of private way over another’s and may arise by prescription from seven years’ uninterrupted use through improved lands; but in order to set up such a prescriptive right of way, it is essential that the prescriber show not only that the prescriber has been in the uninterrupted use thereof for seven years or more, but also that it does not exceed 15 (now 20) feet in width, that it is the same number of feet originally appropriated, and that the prescriber has kept it open and in repair during this period. Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392, 1943 Ga. LEXIS 506 (1943). In order to acquire a prescriptive title to a private way over another’s land, the burden of proof is on the prescriber to show that the prescriber has been in the uninterrupted use thereof for seven years or more, that it is the same number of feet originally appropriated, that it has been kept open and in repair during such period, and is of the width permitted by law. Bedingfield v. McCullough, 106 Ga. App. 759, 128 S.E.2d 374, 1962 Ga. App. LEXIS 843 (1962). Failure of landowner to reserve easement. - Where the developer of a condominium could have reserved an easement over land it sold in order to provide access to other remaining land, the trial court did not err in declaring that condemnation of a private way was “otherwise unreasonable.” Mersac, Inc. v. National Hills Condominium Assoc., 267 Ga. 493, 480 S.E.2d 16, 1997 Ga. LEXIS 23 (1997). Failure of lessee to reserve easement. - Because genuine issues of material fact remained as to whether a lessee’s failure to reserve an easement to the subject property at the time the lessee executed a corrective quitclaim deed was otherwise unreasonable, foreclosing the condemnation action, partial summary judgment to the lessee was unwarranted.

Wright v. Brookshire, 286 Ga. App. 162, 648 S.E.2d 485, 2007 Ga. App. LEXIS 718 (2007). Usufruct holder could not seek easement by necessity. - Courts of Georgia have drawn distinctions between the rights of a holder of a usufruct and those of a title holder. A usufruct is not subject to ad valorem taxation pursuant to O.C.G.A. § 48-5-3, and the usufruct interest does not authorize the tenant to seek an easement by necessity, pursuant to O.C.G.A. § 44-9-40(b). However, the usufruct holder’s possessory rights may constitute a property interest for which just compensation is payable under Ga. Const. 1983, Art. I, Sec. III, Para. I(a). The Stuttering Foundation, Inc. v. Glynn County, 301 Ga. 492, 801 S.E.2d 793, 2017 Ga. LEXIS 526 (2017). Granting of easement under O.C.G.A. § 44-9-40 shall not authorize cancellation of covenant of limited use already in force with respect to the property involved. Bateman v. Fordham, 232 Ga. 520, 207 S.E.2d 501, 1974 Ga. LEXIS 993 (1974). “Prima facie case of necessity” shown by the existence of landlocked property does not equate to an absolute entitlement to a private way to such property regardless of the reasonableness involved. DOT v. Freeman, 187 Ga. App. 883, 371 S.E.2d 887, 1988 Ga. App. LEXIS 1007 (1988). The feasibility of implementing a grantee’s plans for landlocked property was not relevant to the question whether granting a private way would be “otherwise unreasonable so as to justify denial of the private way.” The feasibility issue was appropriately left for jury consideration in regard to the claimed value of the condemned property. DOT v. Freeman, 187 Ga. App. 883, 371 S.E.2d 887, 1988 Ga. App. LEXIS 1007 (1988). The effort of private parties to widen a roadway without agreement of adjoining landowners may succeed only by acquisition of a private way, as provided in O.C.G.A. § 44-9-40. Keith v. Whitehead, 258 Ga. 142, 365 S.E.2d 435, 1988 Ga. LEXIS 162 (1988). 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 Ga. LEXIS 520 (1993), overruled in part, Gilliam v. State, 312 Ga. 60, 860 S.E.2d 543, 2021 Ga. LEXIS 467 (2021). Applicant seeking private way of necessity did not voluntarily landlock itself. - Because the evidence in the record failed to support the trial court’s conclusion that a corporate landowner voluntarily landlocked itself, and no other evidence showed that granting a private way of necessity would be otherwise unreasonable, the trial court erred by denying the corporation’s petition for condemnation of a private way of necessity over an existing private access easement. Dovetail Props. v. Herron, 287 Ga. App. 808, 652 S.E.2d 856, 2007 Ga. App. LEXIS 1107 (2007). Attempt to enforce right to obtain private way. - Trial court erred by characterizing the property owner’s argument that the court was exercising the court’s constitutional right by attempting to obtain a private way to the owner’s landlocked property as a new claim not raised in the complaint. The complaint brought pursuant to O.C.G.A. § 44-9-40 et seq. was necessarily an attempt to enforce the owner’s constitutional right to obtain a private way and the statute existed for the sole purpose of providing a procedure to enforce rights preserved by Ga. Const. 1983, Art. I, Sec. III, Para. II. Dehco, Inc. v. Bd. of Regents of the Univ. Sys. of Ga., 350 Ga. App. 760, 830 S.E.2d 333, 2019 Ga. App. LEXIS 380 (2019). Easement accorded with statute. - Trial court did not err in limiting an easement for ingress and egress down the center line of a street because the easement recognized accorded with the statutory private way easements that Georgia law allowed for such access to public roads under O.C.G.A. § 44-9-40. Goodson v. Ford, 290 Ga. 662, 725 S.E.2d 229, 2012 Ga. LEXIS 254 (2012). Use of driveway and railroad crossing. - Trial court properly awarded a property owner compensatory damages in

an inverse condemnation suit against the Georgia Department of Transportation (DOT) because the property owner established the acquisition of a prescriptive easement over the driveway and railroad crossing at issue and, thus, had a compensable property interest as a result of DOT closing the driveway. Ga. Dep’t of Transp. v. Jackson, 322 Ga. App. 212, 744 S.E.2d 389, 2013 Ga. App. LEXIS 480 (2013). Standing to pursue claim. - When plaintiff filed the plaintiff’s second petition, the plaintiff had an existing right to cross over the lands of one of the defendants but the plaintiff still could not cross the other defendant’s property, and the landlocked parcel was, therefore, still without a means of access, ingress, and egress. The lack of a “means of access, ingress, and egress” adequately estab-

lished the standing of plaintiff to pursue a condemnation action. Canton Partners v. Scarbrough Group, Inc., 316 Ga. App. 57, 728 S.E.2d 733, 2012 Ga. App. LEXIS 482 (2012). Those who use a private way must keep the same in repair, and cannot take advantage of their own default by turning out to avoid obstructions which they should have removed. Kirkland v. Pitman, 122 Ga. 256, 50 S.E. 117, 1904 Ga. LEXIS 807 (1904). Way’s obstruction gives rise to right of action for damages. - The obstruction of a prescriptive private way would constitute an interference with a private right, and give a right of action in tort for damages from the alleged violation of this right. Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392, 1943 Ga. LEXIS 506 (1943).

RESEARCH REFERENCES Am. Jur. 2d. 25 Am. Jur. 2d, Easements and Licenses, §§ 7, 13, 18, 74 et seq., 87, 124, 125. C.J.S. 28A C.J.S., Easements, §§ 8, 9, 13, 52, 152 et seq., 182 et seq. ALR. Private easement in way vacated, abandoned, or closed by public, 150 A.L.R. 644.

Easements or privileges of tenant of part of building as to other parts not included in lease, 24 A.L.R.2d 123. Necessary parties defendant to suit to prevent or remove obstruction or interference with easement of way, 28 A.L.R.2d 409.