---
title: Ga. Const. Art. I, Sec. III, Para. II. Private ways.
collection: code
id: ga-const:art-i-sec-iii-para-ii
cite_as: Ga. Const. Art. I, Sec. III, Para. II
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---

# Ga. Const. Art. I, Sec. III, Para. II. Private ways.

A constitution provision shown as in force is in force as printed in the volume. A court decision can make a printed provision unenforceable without changing the volume, and the volume does not record that.

In case of necessity, private ways may be granted upon just and adequate compensation being first paid by the applicant.

## 1976 Constitution.

Art. I, Sec. III, Para. I.

## The Probate Courts) or County Comprivate Way Acquired by Prescripother Private Ways Sections.

A private way, created by necessary implication, was wholly distinct from a private way over the land of a stranger, also provided by former Code 1933, § 85-1401 (see now O.C.G.A. § 44-9-1), from ‘‘compulsory purchase and sale through the ordinary (now superior court)’’ under the procedure of former Code 1933, §§ 83-101 and 83-102 (see now O.C.G.A. § 44-9-40); and consequently this paragraph had no reference thereto. Calhoun v. Ozburn, 186 Ga. 569, 198 S.E. 706 (1938).

Definition of necessity for purposes

## Of Granting Private Way.

Cases of necessity do not arise except where the way sought to be laid out is absolutely indispensable to the applicant, as a means of reaching the applicant’s property. Chat-tanooga, Rome & S.R.R. v. Philpot, 112 Ga. 153, 37 S.E. 181 (1900); Gaines v. Lunsford, 120 Ga. 370, 47 S.E. 967 (1904).

When property right is taken or

## Vested.

No property right is taken from a property owner, nor vested in a private way petitioner, until after all of the rights have been finally established, the compensation is paid, and the court makes such a ‘‘grant’’ by final judgment. Cline v. McMullan, 263 Ga. 321, 431 S.E.2d 368 (1993).

Cotenancy interests in underlying

## Fee.

Condemnation of an easement against a party who has a cotenancy interest in the underlying fee is not prohibited as a matter of law, but is permissible in cases in which there is sufficient evidence establishing the ‘‘necessity’’ for acquisition of the easement and the exclusive use thereof. Benton v. Georgia Marble Co., 258 Ga. 58, 365 S.E.2d 413 (1988).

## Mining or Quarrying.

O.C.G.A. § 44-9-70’s ‘‘necessity’’ standard, which is based upon the successful operation of the applicant’s business of mining or quarrying, is a valid exercise of the General Assembly’s state constitutional authority with respect to the declaration of private ways of necessity. Benton v. Georgia Marble Co., 258 Ga. 58, 365 S.E.2d 413 (1988).