2021 Georgia Code
Title 32 - Highways, Bridges, and Ferries
Chapter 7 - Abandonment, Disposal, or Leasing of Property Not Needed for Public Road Purposes
§ 32-7-2. Procedure for Abandonment

1. 1. Before abandoning any public road on the state highway system, the department shall confer with the governing authority of the counties or municipalities concerned and give due consideration to their wishes in such abandonment; but in case of disagreement the judgment of the department shall prevail.
   2. When it is determined that a section of the state highway system has for any reason ceased to be used by the public to the extent that no substantial public purpose is served by it and after having conferred with the counties and municipalities, the department, by certification signed by the commissioner and accompanied by a plat or sketch, may declare that section of the state highway system abandoned. Thereafter, that section of road shall no longer be a part of the state highway system and the rights of the public in and to the section of road as a public road shall cease.
   3. Prior to certifying the abandonment of a road or section thereof, the department shall give notice of its intentions to the counties or municipalities through which such road passes.
   4. If such county or municipality, by proper resolution, indicates its willingness and desire to take over the road that is proposed to be abandoned and to maintain such road, the certificate of abandonment shall so state; and thereafter the abandoned road shall form part of the county road or municipal street system of the particular county or municipality. Whenever the department abandons a road and a county or a municipality takes over the road, the department shall convey, by quitclaim deed executed by the commissioner, such road to the county or municipality. If the appropriate county or municipality is unwilling to take over the road and maintain it, the property may be disposed of by the department as provided in Code Section 32-7-4, provided that, if the county or municipality has not indicated its desire to take over the road within 30 days after receiving notice, it shall be conclusively presumed that the county or municipality is unwilling to take over the road; and provided, further, that before the department disposes of the abandoned road it shall give 15 days' notice to the county or municipality, during which time such county or municipality may reconsider its decision and take over the road.
2. 1. When it is determined that a section of the county road system has for any reason ceased to be used by the public to the extent that no substantial public purpose is served by it or that its removal from the county road system is otherwise in the best public interest, the county, by certification recorded in its minutes, accompanied by a plat or sketch, and, after notice to property owners located thereon, after notice of such determination is published in the newspaper in which the sheriff's advertisements for the county are published once a week for a period of two weeks, and after a public hearing on such issue, may declare that section of the county road system abandoned. Thereafter, that section of road shall no longer be part of the county road system and the rights of the public in and to the section of road as a public road shall cease.
   2. Prior to certifying the abandonment of a road or section thereof, the county shall give notice of its intention to the municipality into which or through which any part of such road passes.
   3. If such municipality, by proper resolution, indicates its willingness and desire to take over the road that is proposed to be abandoned and to maintain such road, the certification of abandonment shall so state; and thereafter that part of the abandoned road within the municipality shall form part of the municipal street system of the particular municipality. Whenever a county abandons a road and a municipality takes over the road, the county, by quitclaim deed executed by the chairman or presiding officer, shall convey such road to the municipality. If such municipality is unwilling to take over the road and maintain it, the property may be disposed of by the county as provided for in Code Section 32-7-4, provided that, if the municipality has not indicated its desire to take over the road within 30 days after receiving notice, it shall be conclusively presumed the municipality is unwilling to take over the road; and provided, further, that before the county disposes of the abandoned road it shall give 15 days' notice to the municipality during which time such municipality may reconsider its decision and take over the road.
3. When it is determined that a section of the municipal street system has for any reason ceased to be used by the public to the extent that no substantial public purpose is served by it or that its removal from the municipal street system is otherwise in the best public interest, the municipality, by certification recorded in its minutes, accompanied by a plat or sketch, and after notice to property owners located thereon, may declare that section of the municipal street system abandoned. Thereafter, that section of road shall no longer be a part of the municipal street system and the rights of the public in and to that section of street as a public road shall cease. The property may be disposed of by the municipality as provided in Code Section 32-7-4.

(Code 1933, § 95A-619, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, § 16; Ga. L. 1994, p. 294, § 1; Ga. L. 2010, p. 399, § 1/SB 354.)

- For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For annual survey on law of real property, see 43 Mercer L. Rev. 353 (1991). For annual survey article on local government law, see 52 Mercer L. Rev. 341 (2000). For survey article on local government law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 353 (2003). For article, "Administrative Law," see 63 Mercer L. Rev. 47 (2011). For annual survey on local government law, see 66 Mercer L. Rev. 135 (2014).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1873, § 608, former Code 1910, § 644, and former Code 1933, Ch. 95-17, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

The 1994 amendment to O.C.G.A. § 32-7-2 demonstrates that notice by publication does not satisfy the requirement of notice to adjoining landowners. The 1994 amendment added a provision requiring a county to publish notice of the determination to abandon a road in the legal organ of the county, but also retained the language requiring "notice to property owners located thereon." By adding a notice by publication requirement, the legislature must have intended to add a requirement different from the requirement of notice to adjoining property owners. Talbot County Bd. of Comm'rs v. Woodall, 275 Ga. 281, 565 S.E.2d 465 (2002).

- When the public has ceased to use a road for reasons other than the road's state of disrepair, a county is not required to undertake to repair and maintain the road as a prerequisite to abandoning the road in accordance with O.C.G.A. § 32-7-2. Smith v. Board of Comm'rs, 264 Ga. 316, 444 S.E.2d 775 (1994).

Group of landowners were properly granted a writ of mandamus requiring a county to maintain an adjacent road, as the county acquired title to the road by prescriptive acquisition, abandonment was not an issue, and compliance with O.C.G.A. § 32-3-3(c) did not need to be shown when a roadway was otherwise acquired by prescription; moreover, urging that a county's failure to meet the county's obligation to maintain public roads was an acceptable method of abandoning a roadway would encourage counties to disregard their public duty. Shearin v. Wayne Davis & Co., P.C., 281 Ga. 385, 637 S.E.2d 679 (2006).

- Standard of review on appeal with respect to a mandamus order involving the superior court's review of a county's decision to abandon a public road pursuant to O.C.G.A. § 32-7-2(b)(1) is whether there is any evidence supporting the decision of the local governing body, not whether there is any evidence supporting the decision of the superior court. This standard is not applicable if the issue on appeal involves the county's failure to properly build, repair, and maintain county roads. Burke County v. Askin, 294 Ga. 634, 755 S.E.2d 747 (2014).

- Through enactment of Ga. L. 1973, p. 947, § 1 (see now O.C.G.A. § 32-7-1), the General Assembly delegated to the Department of Transportation, and to counties and municipalities throughout the state, authority to relocate or abandon public roads within their respective jurisdictions. McIntosh County v. Fisher, 242 Ga. 66, 247 S.E.2d 863 (1978).

- When there is evidence that an abandoned road has ceased to be used by the public to the extent that the road serves no substantial public purpose, as specified by subsection (b) of this section, the action of a governmental authority in abandoning a road cannot be declared an abuse of discretion, at least on the ground that the governmental authority was erroneous in the government's determination that abandoning the road would be in the public interest. McIntosh County v. Fisher, 242 Ga. 66, 247 S.E.2d 863 (1978).

- Fact that no substantial public purpose was served by a road due to the county's failure to comply with the county's duty to repair and maintain the road did not authorize the county to abandon the road pursuant to O.C.G.A. § 32-7-2. Cherokee County v. McBride, 262 Ga. 460, 421 S.E.2d 530 (1992).

- Subsection (b) of this section does not apply to the relocation of a portion of the county road still in use by the public to such an extent that a substantial public purpose is served by the road, but only when the county abandons all or part of a county road which has for any reason ceased to be used by the public to the extent that no substantial public purpose is served by the road. Miller v. Lanier County, 243 Ga. 58, 252 S.E.2d 909 (1979).

County commission's consideration of economic factors involved in the decision whether to abandon a road was proper and did not constitute an abuse of discretion. Torbett v. Butts County, 271 Ga. 521, 520 S.E.2d 684 (1999).

- Neither the General Assembly nor a subordinate public corporation acting under its authority can lawfully vacate a public street or highway for the benefit of a private individual, but only for the benefit of the public; the benefit may be either in relieving the public from the charge of maintaining a street or highway that is no longer useful or convenient to the public or by laying out a new street or road in its place which will be more useful and convenient to the public in general. McIntosh County v. Fisher, 242 Ga. 66, 247 S.E.2d 863 (1978).

- If public interest is not partial or entire motive which prompts vacating of street, the act of vacating is an abuse of power, a gross abuse if it is authorized without reference to the rights of the public and merely to serve the convenience of a private individual. McIntosh County v. Fisher, 242 Ga. 66, 247 S.E.2d 863 (1978).

- In a mandamus action, a trial court erred by reversing a decision of a county board of commissioners to abandon a road as the trial court failed to give proper deference to the board's decision to abandon the road and substituted the court's own judgment for that of the board. Scarborough v. Hunter, 293 Ga. 431, 746 S.E.2d 119 (2013).

- Public road was not abandoned when the board of county commissioners had not taken official action, but had simply had several discussions concerning the road, and had received, but not finally acted on, requests to close the road. McDilda v. Board of Comm'rs, 230 Ga. App. 530, 497 S.E.2d 25 (1998).

Trial court's denial of a property owner's motions for a directed verdict and for judgment notwithstanding the verdict under O.C.G.A. § 9-11-50 was proper because the county failed to follow all of the statutory steps needed to properly close a road that bordered on an adjoining landowner's properties, pursuant to O.C.G.A. § 32-7-2(b)(1), and the evidence did not demand a verdict that the road was still public. Lovell v. Rea, 278 Ga. App. 740, 629 S.E.2d 459 (2006).

- Paragraph (b)(1) of O.C.G.A. § 32-7-2 requires merely that notice be given before a road is declared abandoned. Lack of proper notice is not a ground for granting a petitioner in mandamus the ultimate relief of ordering a road reopened. Carnes v. Charlock Invs. (USA), Inc., 258 Ga. 771, 373 S.E.2d 742 (1988).

When the county sought to abandon two roads, notice by publication was insufficient to meet the requirement of notice to adjoining property owners; thus, the showing of such notice by the owners who claimed title to the roads did not entitle them to summary judgment. Talbot County Bd. of Comm'rs v. Woodall, 275 Ga. 281, 565 S.E.2d 465 (2002).

- Authority conferred upon the State Highway Board (now State Transportation Board) to change or relocate state-aid roads, and thus to abandon portions of those roads, does not specifically or by necessary implication include the power to foreclose rights of counties or general public to establish easements over abandoned portions of such roads. Southern Ry. v. Wages, 203 Ga. 502, 47 S.E.2d 501 (1948) (decided under former Code 1933, Ch. 95-17).

Alteration of old road involves discontinuance of that part which is altered, and it is lawful to provide for both alteration and discontinuance in the same proceedings, and under citation which refers merely to alteration. Ponder v. Shannon, 54 Ga. 187 (1875); Barnard v. Durrence, 22 Ga. App. 8, 95 S.E. 372 (1918) (decided under former Code 1910, § 644).

- If a highway is legally laid out and established, the mere fact that the public does not use the highway to the highway's entire width will not of itself constitute an abandonment of any portion thereof. State Hwy. Dep't v. Strickland, 214 Ga. 467, 105 S.E.2d 299 (1958) (decided under former Code 1933, Ch. 95-17).

Encroachments on a highway continually used cannot be legalized by mere lapse of time; limited use will not lessen the right of the public to use the entire width of the road whenever increased travel and exigencies of the public render this desirable. State Hwy. Dep't v. Strickland, 214 Ga. 467, 105 S.E.2d 299 (1958) (decided under former Code 1933, Ch. 95-17).

- In a dispute over access to a roadway, the trial court erred in granting the plaintiff summary judgment enjoining the defendant from obstructing the road because questions of fact remained as to abandonment of the roadway leading to the plaintiff's property, which were not properly resolved by the trial court. Pass v. Forestar GA Real Estate Group, Inc., 337 Ga. App. 244, 787 S.E.2d 250 (2016), cert. denied, No. S16C1689, 2016 Ga. LEXIS 830 (Ga. 2016).

Cited in Stein v. Maddox, 234 Ga. 164, 215 S.E.2d 231 (1975); Hall County Historical Soc'y, Inc. v. Georgia DOT, 447 F. Supp. 741 (N.D. Ga. 1978); Edmund v. Odum, 245 Ga. 358, 265 S.E.2d 53 (1980); Peppers v. Elder, 248 Ga. 136, 281 S.E.2d 582 (1981); Glass v. Carnes, 260 Ga. 627, 398 S.E.2d 7 (1990).

OPINIONS OF THE ATTORNEY GENERAL

County must maintain roads on county road system located within municipality.

- Because the county must maintain roads on the county road system and because public roads are not removed from the system by mere annexation into a municipality where the road lies, the county must continue to maintain the roads on the county road system which are in areas annexed into a municipality until the governing authority of the county removes the roads from the county road system by appropriate action. 1976 Op. Att'y Gen. No. U76-21.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Highways, Streets, and Bridges, §§ 148, 149, 174 et seq., 218 et seq.

- 39A C.J.S., Highways, § 192 et seq.

- Reversion of title upon abandonment or vacation of public street or highway, 70 A.L.R. 564.

Precautions to be taken for safety of travelers where highway or part of highway is abandoned, 71 A.L.R. 1206.

Alteration or relocation of street or highway as abandonment or vacation of parts not included, 158 A.L.R. 543.

Necessity for adhering to statutory procedure prescribed for vacation, discontinuance, or change of route of street or highway, 175 A.L.R. 760.

Relative rights and liabilities of abutting owners and public authorities in parkways in center of street, 81 A.L.R.2d 1436.