2020 Georgia Code
Title 44 - Property
Chapter 9 - Easements
Article 3 - Private Ways
§ 44-9-40. Authority of Superior Court to Grant Private Ways; Filing of Petition as Declaration of Necessity; When Proceeding Enjoined

1. The superior court shall have jurisdiction to grant private ways to individuals to go from and return to their property and places of business. Private ways shall not exceed 20 feet in width and may be as much less as the applicant may choose or as the court may find to be reasonably necessary. They shall be kept open and in repair by the person on whose application they are established or his successor in title.
2. When any person or corporation of this state owns real estate or any interest therein to which the person or corporation has no means of access, ingress, and egress and when a means of ingress, egress, and access may be had over and across the lands of any private person or corporation, such person or corporation may file his or its petition in the superior court of the county having jurisdiction; said petition shall allege such facts and shall pray for a judgment condemning an easement of access, ingress, and egress not to exceed 20 feet in width over and across the property of the private person or corporation. The filing of the petition shall be deemed to be the declaration of necessity; however, where it appears that the condemnor owns a right of access, ingress, and egress to his property over another route or owns an easement to a right of private way over another route, which right or easement is not less than 20 feet in width and which alternate route affords such person or corporation a reasonable means of access, ingress, and egress, or where the judge shall find that the exercise of such right of condemnation by the condemnor is otherwise unreasonable, the judge of the superior court is authorized under such circumstances to find that the condemnation and the declaration of necessity constitute an abuse of discretion and to enjoin the proceeding.

(Laws 1834, Cobb's 1851 Digest, p. 955; Ga. L. 1853-54, p. 88, § 1; Code 1863, §§ 692, 693; Code 1868, §§ 754, 755; Code 1873, §§ 720, 721; Code 1882, §§ 720, 721; Civil Code 1895, §§ 661, 662; Civil Code 1910, §§ 807, 808; Code 1933, §§ 83-101, 83-102; Ga. L. 1953, Nov.-Dec. Sess., p. 98, § 1; Ga. L. 1967, p. 143, § 2; Ga. L. 1982, p. 3, § 44.)

- 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).

ANALYSIS

• General Consideration
• Decisions Under Prior Law

General Consideration

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), overruled on other grounds, Eileen B. White & Assocs. v. Gunnells, 263 Ga. 360, 434 S.E.2d 477 (1993).

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), overruled on other grounds, Eileen B. White & Assocs. v. Gunnells, 263 Ga. 360, 434 S.E.2d 477 (1993).

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).

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).

- 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).

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).

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).

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).

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), cert. denied, No. S15C0643, 2015 Ga. LEXIS 341 (Ga. 2015).

- 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).

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).

- 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).

- 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).

- 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).

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).

"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, cert. denied, 187 Ga. App. 907, 371 S.E.2d 887 (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, cert. denied, 187 Ga. App. 907, 371 S.E.2d 887 (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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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 established 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).

Cited in Flanigan v. Martin, 130 Ga. App. 272, 202 S.E.2d 680 (1973); Atlanta-East, Inc. v. Tate Mt. Assocs., 265 Ga. 742, 462 S.E.2d 613 (1995); Norfolk S. Ry. v. Dempsey, 267 Ga. 241, 476 S.E.2d 577 (1996); Stover v. Tipton, 252 Ga. App. 427, 555 S.E.2d 151 (2001); Norton v. Holcomb, 285 Ga. App. 78, 646 S.E.2d 94 (2007); Daniel v. Amicalola Elec. Mbrshp. Corp., 289 Ga. 437, 711 S.E.2d 709 (2011).

- 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).

- 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).

Law does not authorize probate judge to declare private way to be permanent. Herndon v. Strickland, 86 Ga. 323, 12 S.E. 642 (1890).

- 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).

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).

- 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).

- 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).

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).

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).

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).

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).

- 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).