Gaines v. Lunsford

• Decision Date: 09 June 1904
• Citation: 47 S.E. 967,120 Ga. 370
• Parties: GAINES . v. LUNSFORD.
• Court: Georgia Supreme Court

47 S.E. 967

120 Ga. 370

GAINES .

v.LUNSFORD.

Supreme Court of Georgia.

June 9, 1904.

WATS OF NECESSITY—WHEN GRANTED.

1. The Constitution provides for ways of necessity, but not for those of convenience; nor does it guaranty the landowner the right to connect directly with a public road, if there are other ways affording reasonably sufficient means of access therefrom to his farm or residence.

2. Where a tract is touched by steep and hilly "settlement roads, " there is no such necessity as will warrant the taking of private property, in order to construct thereon a way leading to a public road which is in better condition, and on which heavier loads may be drawn.

¶ 2. See Easements, vol. 17, Cent. Dig. § 63.

3. Nor is the rule changed by the fact that a cut or obstruction exists on plaintiff's land, between his residence and the settlement roads.

4. Nor can a way of necessity across the lands of another be laid out because the settlement road is liable to be closed. As long as it is open to plaintiff's use, no legal necessity for opening another way exists.

(Syllabus by the Court.)

Error from Superior Court, Elbert County; E. J. Reagan, Judge.

Action by A. S. Lunsford against F. L. M. Gaines. Judgment for plaintiff. Defendant brings error. Reversed.

Sam L. Olive, for plaintiff in error.

Jos. N. Warley, for defendant in error.

LAMAR, J. There are no plats in the record to show the situation of plaintiff's and defendant's land, nor the location of the public road, nor where the "settlement roads" referred to in the evidence touch the farm, nor, indeed, where the proposed way begins or ends. Even the plat referred to as attached to the petition is not brought up, and it is therefore difficult to determine where the private road is to start, and with what it is to connect. Aided by the argument, however, we infer that plaintiff's residence is located near the center of his farm. It appears that for many years there has been a private way leading therefrom across the lands of Gaines, the defendant, to what we infer was a public highway. This path or way was not 15 feet wide, its route had been changed from time to time, and it had not been worked by plaintiff and his predecessor in title, so that under Pol. Code, §§ 662, 678, no prescriptive right had ripened. Being unable to continue its use, he applied for the establishment of a way of necessity over practically the same route. The record shows that plaintiff's farm was touched by two settlement roads, and that he could have reached either over his own land, and without crossing the plantation of Gaines. It is claimed, however, that a farm road from plaintiff's dwelling would have had to cross a deep cut or obstruction in his field, that it would have been expensive to construct the route over the same, and that a way thus laid out would lead to settlement roads which were steep, hilly, and in such bad condition that it was impossible to haul thereon more than half a load.

At common law, where the grantor conveyed land otherwise inaccessible, there was of necessity an implication that he had unintentionally omitted to convey a means of access thereto. This necessary implicationentitled the landlocked grantee to a way out to whatever public or private roads furnished access to the original tract, in the laying out of which, due regard, of course, had to be had to the convenience of the grantor. Such ways by implication are still recognized in this state. Civ. Code, § 30G5. But in addition to these common-law ways of necessity, the Constitution provides for acquiring similar easements over the land of those with whom the applicant had no privity of estate, declaring (Civ. Code, § 5729) that, "in cases of necessity, private ways may be granted upon just compensation being first...