2020 Georgia Code
Title 51 - Torts
Chapter 9 - Injuries to Real Estate
§ 51-9-10. Interference With Right of Way or Right of Common
The unlawful interference with a right of way or a right of common constitutes a trespass to the party entitled thereto.
(Orig. Code 1863, § 2963; Code 1868, § 2970; Code 1873, § 3021; Code 1882, § 3021; Civil Code 1895, § 3882; Civil Code 1910, § 4478; Code 1933, § 105-1410.)
Law reviews.- For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For summary review article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008).
JUDICIAL DECISIONS
What constitutes "unlawful interference."
- Defendant surveyor's erroneous plat, which resulted, at most, in a cloud on the plaintiff's title in the form of a purported conveyance to the Department of Transportation by adjoining landowners of the access rights to the plaintiff's property, was not an "unlawful interference" with the plaintiff's property. Walker v. Hurd, 195 Ga. App. 855, 394 S.E.2d 925 (1990).
LLC that declared Chapter 11 bankruptcy committed trespass in violation of O.C.G.A. § 51-9-10 when the LLC interfered with a pilot's right to use an airport the LLC owned after the LLC gave the pilot permission to do so, but the pilot's right was limited to use of the taxiways and runway and the pilot violated § 51-9-10 by entering the airport for other purposes after being told not to do so; although the court awarded the LLC $100 for the pilot's trespass and the pilot $600 for the LLC's trespass, neither party showed that the opposing party committed a private nuisance in violation of Georgia law, and the court refused to award punitive damages under O.C.G.A. § 51-12-5.1 or attorney's fees under O.C.G.A. § 13-6-11 to either party. Flyboy Aviation Props., LLC v. Franck (In re Flyboy Aviation Props., LLC), 525 Bankr. 510 (Bankr. N.D. Ga. 2015).
Highway is public way open and free to any one who has occasion to pass along it on foot or with any kind of vehicle. Holland v. Shackelford, 220 Ga. 104, 137 S.E.2d 298 (1964).
Streets and public places belong to general as well as local public. Holland v. Shackelford, 220 Ga. 104, 137 S.E.2d 298 (1964).
Owners of property which abuts public road have right to use and enjoyment of such road in common with all other members of public, as well as other rights such as ingress and egress which do not belong to the public generally. Holland v. Shackelford, 220 Ga. 104, 137 S.E.2d 298 (1964).
Landowner may maintain suit to enjoin further interference with the landowner's means of egress to and ingress from public highway, when such interference amounts to a continuing nuisance or trespass, and when an injunction would prevent a multiplicity of suits. Barham v. Grant, 185 Ga. 601, 196 S.E. 43 (1937); Holland v. Shackelford, 220 Ga. 104, 137 S.E.2d 298 (1964).
One whose means of egress from and ingress to one's property abutting on a public highway is illegally and unnecessarily interfered with by the placing of obstructions in and the plowing up of the portion of such way lying in the highway by another, not the public authority charged with the duty of maintaining and keeping in repair such highway, suffers a special injury and may maintain an action for damages therefore against the wrongdoer; one's injury being different from that suffered by the public at large, although such obstruction and interference may also constitute a public nuisance. Barham v. Grant, 185 Ga. 601, 196 S.E. 43 (1937); Holland v. Shackleford, 220 Ga. 104, 137 S.E.2d 298 (1964).
Damages for one whose means of egress and ingress to one's property abutting on public highway is illegally and unnecessarily interfered with may be depreciation in market value, if the obstruction is a permanent one, or the damage to business and loss of profits. Punitive damages may be recovered when the circumstances are such as to justify the allowance thereof. Barham v. Grant, 185 Ga. 601, 196 S.E. 43 (1937); Holland v. Shackleford, 220 Ga. 104, 137 S.E.2d 298 (1964).
Damage to grass on public right of way did not interfere with neighboring landowner's egress or ingress.
- When a builder's trucks damaged grass near a curb in front of a landowner's house, and the grass was entirely within a public right of way owned by a county, the landowner did not have standing to sue the builder for trespass based on O.C.G.A. § 51-9-10; the landowner had provided no evidence of interference with the right to ingress and egress over the public right of way, but rather the landowner retained the full enjoyment of the right to come and go over the right of way as the landowner pleased. Moses v. Traton Corp., 286 Ga. App. 843, 650 S.E.2d 353 (2007), cert. denied, 2007 Ga. LEXIS 743 (Ga. 2007).
Destruction of easement actionable.
- The destruction of an easement which the railroad company contracted to give a landowner in consideration of the landowner's relinquishment of an existing private road essential to the enjoyment of the landowner's property, is a trespass. Atkinson v. Kreis, 140 Ga. 52, 78 S.E. 465 (1913).
Destruction of right of common pasturage.
- An action will lie for the destruction of a right of common pasturage. Davis v. Gurley, 44 Ga. 582 (1872).
Control of railroad over right of way.
- The dominion of a railroad corporation over its trains, tracts and "right of way" is complete and exclusive. Fluker v. Georgia R.R. & Banking Co., 81 Ga. 461, 8 S.E. 529 (1889).
Measure of damages.
- When an unauthorized use of a private way occurs, the damages are measured by the injury sustained. Johnson & Co. v. Arnold, 91 Ga. 659, 18 S.E. 370 (1893).
The measure of damages when a private way is closed is the depreciation in the value of the land. Atkinson v. Kreis, 140 Ga. 52, 78 S.E. 465 (1913).
RESEARCH REFERENCES
Am. Jur. 2d.
- 75 Am. Jur. 2d, Trespass, §§ 24 et seq, 36 et seq.
C.J.S.- 87 C.J.S., Trespass, § 3 et seq.
ALR.
- Proper remedy for interference with right of way, 47 A.L.R. 552.
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.
