Kellett v. Salter, 35242
Decision Date | 30 October 1979 |
Docket Number | No. 35242,35242 |
Citation | 261 S.E.2d 597,244 Ga. 601 |
Parties | KELLETT v. SALTER et al. |
Court | Georgia Supreme Court |
Smith & Jones, William E. Smith, Americus, for appellant.
Watson, Spence, Lowe & Chambless, G. Stuart Watson, E. Dunn Stapleton, Albany, for appellees.
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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