Blount v. Chambers, A02A0965.

• Decision Date: 01 October 2002
• Docket Number: No. A02A0965.,A02A0965.
• Parties: BLOUNT et al. v. CHAMBERS et al.
• Court: Georgia Court of Appeals

572 S.E.2d 32

257 Ga. App. 663

BLOUNT et al. v. CHAMBERS et al.

No. A02A0965.

Court of Appeals of Georgia.

October 1, 2002.

Thomas W. Everett, Ailey, for appellant.

Jessie M. Chambers, pro se.

Stella L. Chambers, pro se.

Barney Chambers, pro se.

ANDREWS, Presiding Judge.

Clint and Ruby Blount appeal from the trial court's order denying their petition for condemnation of an easement of access over the Chamberses' property. In denying the petition, the trial court found there were reasonable alternate routes by which the Blounts could access their property. We find no error and affirm.

The Blounts brought their petition for condemnation under OCGA § 44-9-40(a), which provides that the superior court has jurisdiction to grant private ways to individuals to go to and from their property.

In order to prove the necessity of a private way, OCGA § 44-9-40(b) requires the condemnor to show that he has no reasonable means of access to his property. 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 then shifts to the condemnee to prove that the condemnor has a reasonable means of access to the property.

(Footnotes and emphasis omitted). Hensley v. Henry, 246 Ga.App. 417, 419(1), 541 S.E.2d 398 (2000). See also Intl. Paper Realty Corp. v. Miller, 255 Ga. 676, 677, 341 S.E.2d 445 (1986).

The standard of review of the trial court's judgment under this Code section is whether the decision of the trial court is clearly erroneous. Hanson v. Tallant, 265 Ga. 669, 670, 461 S.E.2d 225 (1995). Further, we review this claim under the "any evidence" rule and must construe the evidence in favor of upholding the judgment of the trial court. Hensley, supra at 419, 541 S.E.2d 398.

So construed, the evidence at the hearing on the petition for condemnation was as follows. The county tax appraiser testified that the Blounts' property was landlocked and this appears to be undisputed. The Blounts therefore made out a prima facie case of necessity and the burden shifted to the Chamberses to show that the Blounts had alternate reasonable means of access to their property.

There was testimony that there were two other routes that accessed the Blounts' property, one across the DeJarnette property and one across the Charlie Sharpe estate. Blount acknowledged that he had used these routes in the past.

Chambers stated that the distance in accessing the Blount property across DeJarnette's land was approximately 400 feet and the distance across his land was 300 feet. In addition, the access across DeJarnette's land would go through timberland, whereas if access were granted across his land, it would go through his yard. Mrs. Chambers testified at the hearing that the access road that Blount wanted to put through their property would be through their yard, would take out an oak tree, a lot of shrubbery, fruit trees, and a fence. She also testified that the road would be close to their well and house and their grandchildren could not play safely in the yard with the road so close to the house.

After hearing the evidence, the trial court found that the availability of two alternate reasonable routes, which had been in use by the public for over forty years, precluded the Blounts from seeking yet another route over the Chamberses' property. This appeal followed.

The Blounts argue on...