Carnes v. Charlock Investments (USA), Inc., 46160
| Decision Date | 23 November 1988 |
| Docket Number | No. 46160,46160 |
| Citation | 258 Ga. 771,373 S.E.2d 742 |
| Parties | CARNES et al. v. CHARLOCK INVESTMENTS (USA), INC., et al. |
| Court | Georgia Supreme Court |
Winship E. Rees, Lawrenceville, for Emily W. Rees Carnes et al.
Pierre Howard, Jr., James D. Comerford, Hurt, Richardson, Garner, Todd & Cadenhead, Atlanta, G. Gibson Dean II, Buford, for Charlock Investments (USA), Inc., et al.
In December, 1987 appellee Charlock Investments, Inc. filed a petition for injunction and mandamus, seeking both to enjoin the Gwinnett County Board of Commissioners from keeping a road closed and to order the Board to maintain the road open for public use. Charlock owns 568 acres of undeveloped land fronting the road.
Appellant Carnes owns the "horse farm," a tract of land through which the road runs. In January, 1987 Carnes and her sister asked the Board to close the portion of the road running through their property and the Board closed the road without notice.
In May, 1987 after the Board had received complaints about the closing, it scheduled a public hearing and to give notice posted two signs at either side of the closed portion of the road. At the hearing, the Board voted to keep the road closed.
At the trial on the petition for mandamus, witnesses testified that the road was used for illegal hunting and illegal dumping of trash. The Director of Engineering for Gwinnett County testified that the road was winding and steep, with several blind curves, and that head-on collisions were possible. It was also clear that there was an alternate route to Charlock's property. In May, 1988 the trial court granted Charlock's petition for injunction and mandamus, and ordered the road reopened.
The procedure for abandonment of a public road in a county road system is codified at OCGA § 32-7-2(b)(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, the county ... after notice to property owners located thereon, may declare that section of the county road system abandoned....
The trial court held that Charlock never received proper notice under the statute. The court also held that under OCGA § 32-7-2(b)(1) the Board could not close the road unless it had ceased to be used by the public to the extent that no "substantial public purpose" is served by it. The court explained that when the road was closed in January, 1987 it was still serving a substantial public purpose because school buses and cars used it, and the county considered these facts when they included the road in a bond issue for paving, and because the commission spent $61,750 to build a culvert across the road.
1. Mandamus will issue against a public officer under two circumstances: (1) when a petitioner has a clear legal right to the relief sought, and (2) when there has been a gross abuse of discretion. See Dougherty County v. Webb, 256 Ga. 474, 475-76, 350 S.E.2d 457 (1986).
Charlock did not have a clear legal right to have the road reopened. Under OCGA § 32-7-2(b)(1), the Board was authorized to close the road when it determined that the road had "ceased to be used by the public to the extent that no substantial public purpose is served by it." Absent a gross abuse of this discretion a mandamus will not lie to control the conduct of an officer vested with discretion. In other words, the party seeking the mandamus must show that the discretionary closing of the road was arbitrary, capricious, and unreasonable. 1
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...Whether the PSC abused its discretion in making the decision that there was such a rational basis is a question of law. Carnes v. Charlock Investments, 258 Ga. 771, 772 (fn. 1), 373 S.E.2d 742 The Company contends that the superior court erred in ruling that "the scope of review for rate ca......
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...not a ground for granting a petitioner in mandamus the ultimate relief of ordering the road reopened." Carnes v. Charlock Investments (USA), Inc., 258 Ga. 771, 373 S.E.2d 742, 744 (1988). See Complaint, Count II (seeking mandamus forcing defendants to reopen Landfill To the extent that Coun......
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Scarborough v. Hunter, S13A0060.
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Glass v. Carnes
...G. Cook, Smith, Gambrell & Russell, Atlanta, for Carnes. FLETCHER, Justice. This is a continuation of Carnes v. Charlock Investments (USA), Inc., 258 Ga. 771, 373 S.E.2d 742 (1988). Preliminary In 1987, appellant Charlock Investments, Inc. filed suit seeking to enjoin the Gwinnett County Bo......