146 Ga. 143 | Ga. | 1916
W. H. Hendrix made an application to the ordinary of Cherokee county, to' condemn and lay out a private way over the land of J. A. Wyatt. The ordinary granted the application, and appointed commissioners td lay out the road. Wyatt carried the case by certiorari to the superior court, and upon the hearing the trial judge dismissed the certiorari, and Wyatt excepted.
To authorize the condemnation of a right of way over the land of another person, a necessity for such way must exist. In Chattanooga &c. R. Co. v. Philpot, 112 Ga. 153 (37 S. E. 181), it was held: “ ‘Cases of necessity/ contemplated in that provision of the constitution which declares that Tn eases of necessity5 private ways may be granted upon just compensation being first paid, 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 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.55 To the same effect is the ruling in the case of Gaines v. Lunsford, 120 Ga. 370 (47 S. E. 967, 102 Am. St. R. 109). From the evidence adduced on the hearing before the ordinary it appears that the applicant was seeking to obtain an outlet through the lands of Wyatt to a certain public road. The only evidence introduced in behalf of the applicant was that given by himself. His testimony in full, as set out in the petition for certiorari, was as follows: “I am the plaintiff. I consider I have no road to get to my farm. I own lot of land -No. 666 that lies east and broadside of lot 665 that is owned by J. A. Wyatt. I own three acres in the southeast corner of lot 665; my part is 140 yards running north from southeast corner, and 105 yards running west from that corner. The road now runs through this 3 acres and comes to Wyatt line about the middle of this 3-acre north line. I could go over my own land by going to the east of the house occupied
The applicant wholly failed to make out a case entitling him to condemn a way across the lands of the defendant. Aside from the failure of the evidence clearly to show that any necessity for a way over any route existed, it is undisputed that the applicant could make a road over his own land for the greater part of the distance to the public road, and that the defendant tendered to him a way over his land for the remaining distance. In Russell v. Napier, 82 Ga. 770 (9 S. E. 746), it was ruled: “One is not allowed to claim a road over another’s land as a way of necessity, when he has or can have such a way over his own." If it be said
Judgment reversed.