Department of Transportation v. Freeman

371 S.E.2d 887, 187 Ga. App. 883, 1988 Ga. App. LEXIS 1007
CourtCourt of Appeals of Georgia
DecidedJuly 7, 1988
Docket76069
StatusPublished
Cited by7 cases

This text of 371 S.E.2d 887 (Department of Transportation v. Freeman) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Transportation v. Freeman, 371 S.E.2d 887, 187 Ga. App. 883, 1988 Ga. App. LEXIS 1007 (Ga. Ct. App. 1988).

Opinions

Sognier, Judge.

Robert Freeman and the other owners of 2.627 acres of land at the “Brookwood Interchange” of 1-75 and 1-85 in Atlanta were awarded $400,000 by the jury in this condemnation proceeding. The Department of Transportation appeals from the trial court’s denial of its motion for new trial.

The property in question is landlocked between the interstate highways and the property owned by Southern Railroad, which operates the Brookwood Station. In an earlier appeal, in which the facts of this case are set forth more fully, we reversed the jury verdict for the trial court’s failure to give condemnees’ requested charge concerning the availability of the procedure set forth in OCGA § 44-9-40 authorizing the grant of a private way to a property owner with no means of ingress, egress or access to his property. Freeman v. Dept. of Transp., 177 Ga. App. 51 (338 SE2d 484) (1985).

1. Appellant contends that the trial court’s failure to give appellant’s request to charge no. 39, in which the full provisions of OCGA § 44-9-40 were set forth, constituted reversible error. OCGA § 44-9-40 provides: “(a) 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, (b) 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 [884]*884which 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.” (Emphasis supplied.)

The trial court charged the legal principles of all but the emphasized language in OCGA § 44-9-40 (b) in its instructions to the jury. Appellant argues that the absence of the above-emphasized language in the charge constituted reversible error in that the possibility presented in that language, that the superior court might refuse to proceed with the condemnation of a private easement providing access to appellees’ property by virtue of the condemnation being unreasonable, was improperly removed from the jury’s consideration. We reject appellees’ argument that the “otherwise unreasonable” language in OCGA § 44-9-40 does not apply to a determination whether a private way may be condemned when landlocked property is involved. The language of the statute does not support an interpretation that the question of reasonableness is not applicable when the property sought to be accessed by a private way is landlocked. “In order to prove the necessity of a private way, OCGA § 44-9-40 (b) requires the condemnor to show he has no reasonable means of access to his property. [Cit.] Where the condemnor proves that he has no access to his property, i.e., that it is landlocked, he makes out a prima facie case of necessity under the statute. The burden of persuasion then shifts to the condemnee to prove the condemnor has a reasonable means of access to the property.” International Paper Realty Corp. v. Miller, 255 Ga. 676, 677 (341 SE2d 445) (1986). The “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. For example, had the only means of accessing appellees’ property mandated the destruction of Brookwood Station, a structure on the historical building register, a superior court judge could have considered the grant of a private way to the landlocked property to be unreasonable and enjoined it. Thus, neither the statute nor the case law supports appellees’ interpretation of OCGA § 44-9-40.

However, we find no reversible error in the trial court’s refusal to charge appellant’s request to charge no. 39 because, while correct as an abstract principle of law, it was not adjusted to the evidence adduced at trial. While there was evidence that the potential grantor of the private way, Southern Railroad, would have vigorously opposed the creation of a private way for obvious safety reasons if a grade level crossing of its tracks had been involved, appellees’ evidence re-[885]*885fleeted plans for accessing the property by tunnel or bridge over the tracks. There was no evidence a private way obtained by bridge or tunnel to the property would be unreasonable; the only evidence even addressing these plans was the testimony of one railroad official who stated that he would have opposed the access because the construction would have interfered with the railroad’s business. The same official also acknowledged that the interference the railroad had experienced during the construction of the tunnel currently providing railroad employees access under the rails had ceased.

Although appellant points to evidence that accessing the major commercial building appellees claimed they would have built on the landlocked property would have required more than the twenty foot private way, there was no evidence appellees would have been legally prevented from constructing the building due to the twenty-foot limitation and we do not find the feasibility of implementing a grantee’s plans for the landlocked property to be relevant to the question whether granting the private way would be “otherwise unreasonable.” The feasibility issue was appropriately left for jury consideration in regard to the claimed value of the condemned property and was posited to the jury in a charge that thoroughly presented the possibility that appellees’ plans for the property would be subject to the twenty-foot private way limitation.

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Department of Transportation v. Freeman
371 S.E.2d 887 (Court of Appeals of Georgia, 1988)

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Bluebook (online)
371 S.E.2d 887, 187 Ga. App. 883, 1988 Ga. App. LEXIS 1007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-transportation-v-freeman-gactapp-1988.