Pierce v. Wise

• Decision Date: 09 November 2006
• Docket Number: No. A06A1154.,A06A1154.
• Citation: 282 Ga. App. 709,639 S.E.2d 348
• Parties: PIERCE v. WISE et al.
• Court: Georgia Court of Appeals

282 Ga. App. 709

639 S.E.2d 348

PIERCE v. WISE et al.

No. A06A1154.

Court of Appeals of Georgia.

November 9, 2006.

Reconsideration Denied December 5, 2006.

Greer, Klosik, Daugherty, Swank & McCune, Frank J. Klosik, Jr., Alina A. Krivitsky, Atlanta, for appellant.

Charles D. Joyner, Buford, for appellees.

PHIPPS, Judge.

Claiming that he lacks any other reasonable means of access to his property, Larry Pierce filed a petition in the Superior Court of Forsyth County for condemnation of a private way of necessity over the adjacent lands of John Kenneth Wise and Hopeful, LLC. Pierce also sought damages on various theories, including intentional infliction of emotional distress. After the trial court denied the parties' cross-motions for summary judgment on the issue of Pierce's necessity for the private way, the case proceeded to a jury trial. After the court granted Wise's motion for directed verdict on Pierce's claim of intentional infliction of emotional distress, the jury found that Pierce has a means of access to his property. Accordingly, the trial court entered judgment in favor of Wise and Hopeful on Pierce's petition. Pierce appeals. For reasons that follow, we affirm the grant of Wise's motion for directed verdict on Pierce's tort claim but reverse the entry of judgment against Pierce on his petition for condemnation of a private way of necessity.

Pierce owns a triangular 0.40-acre parcel of property located in Lot 31 of Lawson Manor Subdivision. He bought the property for $ 10,000 in 2000. The adjacent Lots 30 and 32 are owned by Wise and Hopeful, respectively. According to Pierce, the tip of his triangular parcel touches the adjacent public roadway, Lawson Drive, at a point so narrow that it does not permit him to access the roadway without traversing either Wise's property on the one side or Hopeful's property on the other. According to Pierce, the base of the triangle gives him approximately "100 foot coverage of waterfront on Lake Lanier."

Following his purchase, the United States Army Corps of Engineers allowed Pierce to build a boat dock in Lake Lanier, thereby giving Pierce access to his property via the waterway. In addition, Wise orally gave Pierce permission to cross over Wise's Lot 30 to gain access to Pierce's Lot 31 via Lawson Drive. Subsequently, however, Wise and Hopeful sent Pierce letters instructing him to cease and desist from gaining access to his property from Lawson Drive over their properties.

Evidence was presented showing that Pierce currently accesses his property by land by parking at the end of Lawson Drive and walking about 650 to 700 feet along the shore of Lake Lanier through Army Corps of Engineers property down a path that is between four and ten feet wide depending on the height of the lake water. As a member of the public, Pierce may use this pathway and remove minor landscaping insofar as that obstructs his ability to traverse the pathway by foot. But he cannot construct improvements to the pathway to provide vehicular access.

Evidence sought to be admitted by Pierce showed that Wise's ex-wife's mother acquired ownership of Lots 30, 31, and 32 in 1986; that she had the property surveyed in 1993; and that Lot 30 (which had been a rectangular lot with adequate access to Lawson Drive) became a triangular-shaped lot with no usable road frontage only as a result of an error in the survey. Hopeful, through its owner Newt Anderson, subsequently acquired Lot 32 as a real estate investment in foreclosure proceedings. After purchasing the property, Anderson discovered that Lot 32 included property that he thought would have been in Lot 31. Wise acquired Lot 30 from his ex-wife. For over 25 years, he had used the property as a lake house and then as his primary residence.

1. Pierce first contends that the trial court erred in denying his pretrial motion for partial summary judgment, as well as his motion for directed verdict at the conclusion of the presentation of evidence at trial, on the question of necessity for the private way.

OCGA § 44-9-40(b) permits any person or corporation who owns real estate in this state to file a petition in the superior court of the county having jurisdiction praying for a judgment condemning an easement of access, ingress, and egress over and across the property of another. To prove the necessity of such a private way, OCGA 167; 44-9-40(b) requires the petitioner or condemnor to show he has no other reasonable means of access to his property, i.e., that he is landlocked.¹ OCGA § 44-9-40(b) additionally authorizes the court to find that the condemnation and declaration of necessity constitute an abuse of discretion and to enjoin the proceeding based on a finding that the exercise of such right of condemnation by the condemnor is "otherwise unreasonable."²

Intl. Paper Realty Corp. v. Miller³ addressed the issue of whether, under the statute, navigable waters alone may afford a person "reasonable" access to his property. Miller held that in this day and age, a navigable stream is seldom considered a reasonable way to travel to and from one's property. Accordingly, Miller decided to treat property to which there is no access other than by navigable waterway as property to which there is presumptively no reasonable means of access for purposes of proving necessity under OCGA § 44-9-40(b).

Thus where the condemnor establishes that the only access to his property is by way of navigable waters, he has established a prima facie case that he has no reasonable means of access under OCGA § 44-9-40(b). The burden then shifts to the condemnee to go forward with the evidence and demonstrate that access to the navigable waters constitutes a reasonable means of access under the peculiar circumstances of the case.⁴

Mersac, Inc. v. Nat. Hills Condo. Assn.⁵ held that where a property owner landlocks himself voluntarily or as a result of negligence in selling off surrounding property and failing to reserve an easement, condemnation of a private way of necessity over lands of another may be found to be "otherwise unreasonable" under OCGA § 44-9-40(b). Blount v. Chambers⁶ found declaration of a private way unreasonable where the petitioners had other, albeit more inconvenient, means of access to their property and condemnation of the private way would have greatly inconvenienced the condemnees.

Clearly, Pierce has no vehicular access to his property; his pedestrian access by land either is extremely cumbersome and inconvenient via the Lake Lanier shoreline or is limited to no more than a two-foot gap between his lot and one of the adjacent lots along Lawson Drive; and his only remaining access is by the navigable waters of Lake Lanier. Unlike the petitioner in Mersac, Pierce did not landlock himself either voluntarily or negligently by failing to reserve an easement. Property owners' "actions in voluntarily creating their hardship are distinguishable from cases [such as this] wherein the landowner purchases property with knowledge that it is landlocked. In such a case, the purchaser's knowledge does not preclude a finding of `strict necessity.' ..."⁷ The law of this state gives a property owner the...