44-9-41. Contents of petition; manner of service and advertisement; fees.
The petition shall describe the easement of private way sought to be condemned over the lands of another and shall state the distance and direction of the private way and the nature of any improvements through which the private way will go. There shall be attached to the petition or incorporated therein a plat showing the measurements and location of the private way. The petition shall state the names and addresses of all persons owning an interest in the property, if known, and shall be served in the following manner:
Where the owner or owners of the property over which the private way is sought are known and reside in the county in which the land is located, the sheriff of the county shall serve each of the persons with a copy of the petition and any orders of the court thereon; and the sheriff shall make a return of the service;
Where the owners of the property are known but reside in another county of this state, they may be served (A) either by the sheriff of the county in which the property is located or by the sheriff of the county of the residence of the owner or owners, such sheriff to make a return of the service, or (B) by the person or corporation seeking to condemn the private way or an agent thereof, in which event the return of service duly filed as a part of the record shall be prima-facie evidence as to the service so made and if not traversed shall be conclusive as to the service;
Where the owner or owners of the property are known but reside outside of this state, the petition shall set forth the addresses of such nonresident owners, in which event it shall be the duty of the clerk of the superior court to cause a true and correct copy of the petition to be served upon the nonresident owner or owners. The clerk shall make and enter upon the original petition or attach thereto his certificate which certifies that he has served the owner or owners by mailing a copy of the petition by certified mail or statutory overnight delivery to the address given in the petition; and the clerk shall be allowed a fee of $2.00 for each entry of service to be taxed against the costs in the case;
In the event any of the owners are minors or persons non compos mentis, the petition shall so state, in which case the petition shall be served on each minor defendant and each non compos mentis defendant in the same manner as provided by paragraph (3) of subsection (e) of Code Section 9-11-4; and
In all cases, the matter shall be advertised once a week for four consecutive weeks in the county newspaper which carries the sheriff's advertisements. The advertisement shall describe the easement to be condemned as set forth in the petition and the owner or owners of the property so far as the same are known. Where this Code section has been complied with so far as possible, the advertisement shall be final and conclusive service upon all persons who are unknown or upon persons who are known but whose addresses and places of residence are unknown; and, in such event, the certificate of the sheriff of the county in which the land is located that such persons do not reside within said county, that he has made diligent inquiry as to their addresses, and that the same are unknown, which certificate is duly filed with the clerk, shall be prima-facie evidence of the fact so certified and unless traversed by a party at interest shall be conclusive. For each certificate the sheriff shall charge the same fee as is provided by law for the service of the petition upon residents of the county.
(Orig. Code 1863, § 694; Code 1868, § 756; Code 1873, § 722; Code 1882, § 722; Civil Code 1895, § 663; Civil Code 1910, § 809; Code 1933, § 83-103; Code 1933, § 83-102, enacted by Ga. L. 1967, p. 143, § 2; Ga. L. 2000, p. 1225, § 6; Ga. L. 2000, p. 1589, § 3.)
The 2000 amendments.
The first 2000 amendment, effective July 1, 2000, and applicable to civil actions filed on or after July 1, 2000, substituted "subsection (e)" for "subsection (d)" in paragraph (4). The second 2000 amendment, effective July 1, 2000, and applicable with respect to notices delivered on or after July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in the second sentence of paragraph (3).
JUDICIAL DECISIONS
Decisions Under Prior Law
1. Decisions Under Code 1910,
§
809
One entering with consent must bring notice to owner of intention to prescribe.
- One who seeks to ripen an absolute right to the use of a private way by prescription, instead of obtaining it by express grant, must, when one enters with the consent of the owner, bring some affirmative notice to the owner, by making repairs or otherwise, of the person's intention to prescribe through seven years' use. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303 (1934).
Passive keeping in repair is notice, but inaction will not suffice;
the expression "keeping in repair" originated in an age when private ways were unpaved and of necessity had to be repaired in order that the use thereof might be continued, and was then the equivalent of action and affirmative notice of an intention to prescribe, even where the use originated in consent. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303 (1934).
When way legally obtained and continued for statutory period, right becomes absolute.
- When the use of a private way has been obtained under the former provisions of this section, and is continued as long as seven years, of which the owner has had six months' knowledge without moving for damages, the right of use becomes absolute, and the owner is barred from claiming damages. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303 (1934).
Obstruction of private right of way after right to use way is acquired is unlawful.
First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303 (1934).
2. Decisions Under Code 1933,
§
83-103
Claim fails where failure to keep way open and in repair.
- Where the plaintiff failed to show that plaintiff and predecessors in title had kept the alleged private way open and in repair, plaintiff's claim to a private way must fail. Woods v. Brannen, 208 Ga. 495, 67 S.E.2d 702 (1951).
