Kellett v. Salter, 35242

Decision Date30 October 1979
Docket NumberNo. 35242,35242
Citation261 S.E.2d 597,244 Ga. 601
PartiesKELLETT v. SALTER et al.
CourtGeorgia Supreme Court

Smith & Jones, William E. Smith, Americus, for appellant.

Watson, Spence, Lowe & Chambless, G. Stuart Watson, E. Dunn Stapleton, Albany, for appellees.

JORDAN, Justice.

The subject of this appeal is a condemnation action brought by the Salters for a private way of necessity over the land of Kellett. A jury awarded the Salters a 200-by-20 foot easement in exchange for $500 in compensation. Kellett appeals contending that the Salters intentionally landlocked themselves by not reserving an easement over other parcels of land they had recently sold, and that an easement over his land was not "absolutely indispensable" for their access to a public road. Held :

1. The Salters proceeded in their condemnation action pursuant to the rules found in Chapter 83-1. The relevant portion of Code § 83-101(b) prescribes the contents of the condemnation petition and goes on to say, "but, where it is made to appear that such condemnor owns a right of access, ingress, and egress to his said property over another route, or owns an easement to a right of private way over another route . . . and such alternate route affords such person . . . A reasonable means of access, ingress, and egress, or the judge shall find that the exercise of such right of condemnation by the condemnor is otherwise unreasonable, the judge of the superior court shall be authorized to find . . . that the aforesaid condemnation and declaration of necessity constitute an abuse of discretion, and enjoin the proceeding." (Emphasis supplied.)

Citing language from Chattanooga, Rome etc. R. Co. v. Philpot, 112 Ga. 153, 37 S.E. 181 (1900), Kellett argues that in order for the Salters to condemn a private way of necessity over his land, that particular route must be "absolutely indispensable" for their ingress and egress. Since the Salters could have reserved an easement over two parcels of land they recently sold but did not, he reasons that they may not now claim an easement over his land simply because this route would be more convenient.

The Salters answer this contention by showing, as they did at trial, that the route over Kellett's land is the only Reasonable means of access that they have, this being the statutory test as set out above. They produced evidence that it would cost them $47,800 to build a road over the lots they had sold to their property which is, itself, worth only $25,500. Furthermore, Dr. Salter testified that, though they did reserve...

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6 cases
  • Benton v. Georgia Marble Co.
    • United States
    • Georgia Supreme Court
    • 9 Marzo 1988
    ...this ruling was based upon this court's decision in Jones & Co. v. Venable, 120 Ga. 1, 47 S.E. 549 (1904). Citing Kellett v. Salter, 244 Ga. 601, 261 S.E.2d 597 (1979), the court further concluded that, since Art. I, Sec. III, Par. II, of the Georgia Constitution, concerning "private ways" ......
  • Graff v. Scanlan
    • United States
    • Pennsylvania Commonwealth Court
    • 22 Marzo 1996
    ...a private road is available to a landowner who does not have a "reasonable means of access, ingress, and egress." Kellett v. Salter, 244 Ga. 601, 261 S.E.2d 597 (1979) (quoting Ga.Code Ann. § 83-101(b)). As such, the fact that a landowner creates his own landlock does not, alone, preclude t......
  • International Paper Realty Corp. v. Miller
    • United States
    • Georgia Supreme Court
    • 9 Abril 1986
    ...its burden of proving that access to its property by way of navigable water is not reasonable. 2 OCGA § 44-9-40(b); Kellett v. Salter, 244 Ga. 601, 261 S.E.2d 597 (1979). In order to prove the necessity of a private way, OCGA § 44-9-40(b) requires the condemnor to show he has no reasonable ......
  • Atlanta-East, Inc. v. Tate Mountain Associates, Inc.
    • United States
    • Georgia Supreme Court
    • 16 Octubre 1995
    ...or the location or width of the private way. 8 Judgment reversed. All the Justices concur. 1 OCGA § 9-11-56(c).2 Kellett v. Salter, 244 Ga. 601, 602, 261 S.E.2d 597 (1979).3 Burnette Ford v. Hayes, 227 Ga. 551, 181 S.E.2d 866 (1971).4 See Kellett, 244 Ga. at 602, 261 S.E.2d 597 (condemnors ......
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