Opinion
40823.
DECIDED SEPTEMBER 11, 1964.
Condemnation of land, etc. Peach Superior Court. Before Judge Long.
Eugene Cook, Attorney General, Richard L. Chambers, E. J. Summerour, Assistant Attorneys General, George Culpepper, III, for plaintiff in error.
Ellsworth Hall, Jr., John M. Hancock, Jr., contra.
1. The motion to dismiss the writ of error is denied.
2. To show a prescriptive right to the use of a private way it is essential that the adverse use be made of the identical way and not of one the location of part of which had been altered during the prescriptive period.
DECIDED SEPTEMBER 11, 1964.
The State Highway Department of Georgia filed proceedings in rem for the condemnation of certain described property, naming three individuals as the owners of the fee simple title to the property. The proceedings were brought under the provisions of the Act of the General Assembly approved April 5, 1961 (Ga. L. 1961, pp. 517 through 529). The three condemnees alleged to be the owners of the title to said land appealed from the estimated compensation deposited by the condemnor under the provisions of said Act. After such appeal, L. C. Holleman filed an intervention in the case alleging that he was the owner of a private way across the lands sought to be condemned which afforded him access from State Route # 49 to the land of the intervenor not involved in this proceeding. The condemnor made a motion for a directed verdict against the intervenor which was overruled. The jury was instructed to render separate verdicts, one applicable to the original condemnees and the other to the intervenor. The jury rendered verdicts for the original condemnees and one for the intervenor. There is no appeal from the verdict and judgment in favor of the original condemnees. The only questions for decision are the exception by the condemnor to the overruling of its motion for a judgment notwithstanding the verdict and the motion by the intervenor to dismiss the writ of error because the condemnor did not pay into the registry of the court, prior to the appeal to this court, the amount found by the jury to be due to the intervenor.
1. The motion to dismiss the writ of error is denied. By amendment to the Constitution, ratified November 8, 1960, Code Ann. § 2-301, it was provided that just and adequate compensation for the condemnation of private property for road purposes by the State, counties and municipalities need not be paid until the same has been finally fixed and determined as provided by law, and the General Assembly was authorized by the amendment to require the condemnor to make prepayment against adequate compensation as a condition precedent to the exercise of the right of eminent domain. This the General Assembly did by the Act of 1961, supra. In this case the condemnor complied with the requirements of said Act. There is no provision of law requiring the payment of compensation into the registry of the court which is awarded to a new party for the first time, as in this case, by a jury on appeal, as a prerequisite to an appeal to this court or the Supreme Court. If such a hiatus in the law is to be filled it is the function of the General Assembly to do so.
2. The court erred in overruling the condemnor's motion for a judgment n.o.v. The only basis for the claim of title to the alleged private way by the intervenor was that of prescription. Whether other requirements to show a right in said way were shown the evidence affirmatively shows without dispute that the location of parts of the road was changed at least two times within the seven year period shown. The changes were made by the owners of the property without objection from the intervenor. This alone is enough to defeat intervenor's claim. Hendricks v. Carter, 21 Ga. App. 527 (6) ( 94 S.E. 807) and cit.
The judgment reversed with direction that the court enter up judgment in accord with condemnor's motion for a judgment n.o.v.
Judgment reversed with direction. Frankum and Pannell, JJ., concur.