Chattanooga v. Philpot

• Decision Date: 31 October 1900
• Citation: 112 Ga. 158,37 S.E. 181
• Parties: CHATTANOOGA, R. & S. R. CO. v. PHILPOT et al.
• Court: Georgia Supreme Court

112 Ga. 158

37 S.E. 181

CHATTANOOGA, R. & S. R. CO.

v.PHILPOT et al.

Supreme Court of Georgia.

Oct. 31, 1900.

PRIVATE WAYS—CASES OF NECESSITY.

"Cases of necessity, " contemplated in that provision of the constitution which declares that "in cases of necessity" private ways may be granted, upon just compensation being first paid (Civ. Code, § 5729), do not arise except where the way sought, to be laid out is absolutely indispensable to the applicant, as a means of reaching his property. If there is in existence a way suitable for all the purposes for which the property is to be used, a case of necessity does not arise, even though such way may be less convenient than the one proposed. (Syllabus by the Court)

Error from superior court, Polk county; C. G. Janes, Judge.

Application of J. H. Philpot and others for condemnation of a private way. The Chattanooga, Rome & Southern Railroad Company brings error. Reversed.

Fielder & Mundy and Alex C. King, for plaintiff in error.

Sanders & Davis, for defendants in error.

COBB, J. An application was brought for the purpose of condemning land for a private way under the provisions of section 661 et seq. of the Political Code. The way which the petitioners prayed might be granted to them extended across the track and right of way of a railroad company, as well as across the lands of private individuals. In response to the notice served upon the owners of the property sought to be condemned, the railroad company appeared and interposed objections to the granting of the application; one of the objections being that there was not such a necessity for the proposed private way as was contemplated by law. At the hearing it appeared that the petitioners had access to their farms and places of residence by means of a private way partly across the right of way of the railroad company, and partly over the land of the person from whom they had purchased, though it was shown that the distance was somewhat longer by this route than by the proposed private way, which, if laid out, would be more convenient than the present method of reaching the homes of the applicants. The individual owning the land over which the private way was located testified that he did not desire the way to be a permanent one, but there was no evidence of a present intention on his part to attempt to abolish the same, or in any way to interfere with its use. There was no evidence that the railroad company had attempted to abolish the private way over its right of way, or that it had in any manner...