O.C.G.A. § 44-9-5 (2019)
Cessation of easement of necessity upon purchase of land providing access to highway
Where a way of necessity is appurtenant to land and the owner thereof purchases other land which provides him access to a highway over his own land, the way of necessity ceases.
History
Civil Code 1895, § 3066; Civil Code 1910, § 3642; Code 1933, § 85-1402. History of Section. This Code section is derived from the
decision in Russell v. Napier, 82 Ga. 770, 9 S.E. 746 (1889).
Annotations
JUDICIAL DECISIONS Where the evidence fails to show any necessity for the way, the way ceases. Charleston & W.C. Ry. v. Fleming, 118 Ga. 699, 45 S.E. 664, 1903 Ga. LEXIS 664 (1903). This easement is acquired by implied grant and is based upon necessity, and when the necessity ceases, the easement ceases. S.A. Lynch Corp. v. Stone, 211 Ga. 516, 87 S.E.2d 57, 1955 Ga. LEXIS 372 (1955). A way of necessity cannot exist in a vacuum, to be retained by one having no property to be served by the way. Seignious v. Metropolitan Atlanta Rapid Transit Auth., 252 Ga. 69, 311 S.E.2d 808, 1984 Ga. LEXIS 581 (1984).
Landlocked owner who can reach highway by another road not entitled to condemn neighbor’s land. - The use of the common-law phrase “way of necessity” and the many authorities holding that wherever necessity ceases the right to such way ceases lead to the conclusion that if the owner of a landlocked farm can reach a highway by means of another private or quasi-private road, the landowner is not under that necessity which above entitles the landowner to condemn the land of a neighbor. Gaines v. Lunsford, 120 Ga. 370, 47 S.E. 967, 1904 Ga. LEXIS 557 (1904).
RESEARCH REFERENCES Am. Jur. 2d. 25 Am. Jur. 2d, Easements and Licenses, §§ 42, 92, 108, 115. C.J.S. 28A C.J.S., Easements, §§ 40 et seq., 91 et seq., 119, 120, 162. ALR. Easement of way of necessity as affected by common ownership of parcels which are not accessible one from the other, 5 A.L.R. 1557. Dedication of footway by permissive use, 7 A.L.R. 125.
Implied easement in respect of drains, pipes, or sewers upon severance of tract, 58 A.L.R. 824. May right of way be appurtenant where the servient tenement is not adjacent to the dominant, 76 A.L.R. 597. Roadway or pathway used at time of severance of tract as visible or apparent easement, 100 A.L.R. 1321; 164 A.L.R.1001. Right of owner of servient estate to alter conditions essential to enjoyment of easement in connection with stairway, or other part of building, 101 A.L.R. 1292.
Cessation of easement of way by necessity upon cessation of necessity, 103 A.L.R. 993. Private easement in way vacated, abandoned, or closed by public, 150 A.L.R. 644. Commencement and duration of express easement as affected by provision in instrument creating it, 154 A.L.R. 5. Conveyance of land as bounded by road, street, or other way as giving grantee rights in or to such way, 46 A.L.R.2d 461.
Easements: way by necessity where property is accessible by navigable water, 9 A.L.R.3d 600. Right to maintain gate or fence across right of way, 52 A.L.R.3d 9. Way of necessity over another’s land, where a means of access does exist, but is claimed to be inadequate, inconvenient, difficult, or costly, 10 A.L.R.4th 447. Way of necessity where only part of land is inaccessible, 10 A.L.R.4th 500.