dissenting.
The majority opinion in this case is unwise and contrary to Art. I, Sec. III, Par. II of the 1983 Georgia Constitution, in that it allows the grant of a private way without just and adequate compensation being *325first paid. It is for this reason that I dissent.
In reaching its conclusion that the trial court’s order finding the private way reasonable, along with the assessors’ award, do not amount to a grant of a private way within the meaning of Art. I, Sec. III, Par. II of the Constitution, the majority fails to analyze the effect of the trial court’s order and the assessors’ award and fails to adhere to the applicable principles of constitutional construction. The specific issue is whether a private way is granted within the meaning of Art. I, Sec. III, Par. II when a board of assessors awards damages for the private way, or only when all appellate procedures have concluded. I conclude that a private way is granted within the meaning of the Constitution when the board of assessors makes its award.
1. In determining whether a private way was granted within the meaning of the Constitution at the time the assessors made their award, we must first examine the effect of the trial court’s judgment and the assessors’ award. Unquestionably, the trial court’s judgment and the assessors’ award are judgments of “tribunal[s] competent in law to fix the rights and liabilities of the parties.” Woodside v. City of Atlanta, 214 Ga. 75, 82 (103 SE2d 108) (1958). These tribunals, at the appellee’s behest, specifically granted the appellee a private way. That grant is binding on the parties unless and until a contrary disposition is reached in a direct attack thereon (e.g., in an appeal), Woodside, 214 Ga. at 82; McGreggor v. W. L. Florence Constr. Co., 208 Ga. 176, 177-178 (65 SE2d 809) (1951), and it “ ‘remains operative with all of its incidents, save in so far as it is incapable of enforcement’ ” because of the appellee’s appeal to superior court. Tilley v. King, 193 Ga. 602, 604 (19 SE2d 281) (1942).3 Accord Hodges v. South Ga. Nat. Gas Co., 111 Ga. App. 180, 181 (141 SE2d 182) (1965). If the appellee successfully maintains the grant of the private way on appeal, the lien of judgment will be binding from the date of its original rendition, stripping the landowner of valuable rights at that time, id. at 604. Thus, the private way granted to date clearly encumbers the appellant’s property. Id.; Woodside, 214 Ga. at 83. For these reasons, the fact that a condemnee may contest the necessity for the private way on appeal to superior court does not negate the fact that a private way has previously been granted or in any way render that grant a nullity.
2. In view of the effect of the trial court’s judgment and the assessors’ award, the issue may be phrased as whether a private way is granted within the meaning of Art. I, Sec. III, Par. II when a private *326way is granted pursuant to an initial binding judgment that encumbers the condemnee’s property, or only when all appellate procedures have concluded.4 For the following reasons, I would hold that a private way is granted within the meaning of the Constitution when the initial binding judgment grants the private way.
(a) In construing the meaning of Art. I, Sec. III, Par. II, certain principles of constitutional construction must be kept in mind. First, the language of this constitutional provision is paramount and mandatory, Woodside, 214 Ga. at 80, and “neither the legislature nor the courts have any right to restrict, evade, or violate it in the slightest degree,” id. Moreover, the grant of private ways under the power of eminent domain is one of the highest powers that can be given to individuals in the state, Thomas v. City of Cairo, 206 Ga. 336 (57 SE2d 192) (1950), and is in derogation of the common law, see 72 CJS, Private Ways, § 6. Art. I, Sec. III, Par. II is remedial in nature, protecting citizens from the unfettered exercise of that power, and must be construed most favorably to the landowner. See generally Mayor &c. of Macon v. Daley, 2 Ga. App. 355 (3) (58 SE 540) (1907); Chattanooga R. Co. v. Philpot, 112 Ga. 153, 154 (37 SE 181) (1900).
(b) Examining the constitutional provision regarding private ways, we see, first, that it does not expressly provide that a private way is not granted until the judgment first granting the private way is no longer subject to an appeal. The drafters of the Constitution clearly knew how to make such a requirement explicit, as they did so with regard to the taking of private property for public road or street purposes in Art. I, Sec. III, Par. I (b) of the Constitution.5 Instead, Art. I, Sec. III, Par. II states without qualification that a “private way may be granted upon just and adequate compensation being first paid” and is thus broad enough to encompass private ways granted pursuant to initial binding judgments that are stayed only by the condemnor filing a notice of appeal. Indeed, such a meaning is mandated by a broad construction of Art. I, Sec. III, Par. II. The right to the use *327and enjoyment of one’s property is one of the most sacrosanct and fundamental rights in this country. It would be inconsistent with the spirit of Art. I, Sec. III, Par. II, which was designed to protect that right, to permit a person to obtain a binding judgment, with its attendant encumbrances, granting a private way across the land of another and then to insist on his right to appeal without paying for the preceding grant. This prospect is especially egregious when the appellate process could take years, as evidenced by this case, in which no jury trial has even been held in superior court.
3. To conclude that a grant has not occurred and that Woodside, supra, 214 Ga., is not on point, the majority states that the condemnee in private way cases may contest necessity on appeal to superior court, but the condemnee in public purpose cases such as Wood-side may not.
The public purpose condemnor has the right to enter and use the property condemned at no risk because the fact that such a condemnor has obtained “title” to the subject property interest will never change on direct appeal. . . .
In contrast to Title 22, where the only issue on appeal from the board of assessors to a jury in the superior court is a de novo review of the appropriate level of damages, under Title 44, the width or location of the private way can be altered or even the necessity of the private way can be denied by the jury on appeal.
Majority opinion, pp. 323, 324.
The proposition that the public condemnor’s right to condemn the condemnee’s property may not be contested following the assessors’ award is simply erroneous. In condemnation cases under Art. 1 of Title 22, a condemnee does have the right to file an equitable action contesting the taking, including but not limited to the necessity therefor, following the assessors’ award. See Williams v. City of LaGrange, 213 Ga. 241 (98 SE2d 617) (1957); Johnston v. Clayton County, 222 Ga. 39 (1) (148 SE2d 417) (1966). Moreover, in condemnation cases under Art. 3 of Title 22, the Article under which the condemnor in Woodside v. City of Atlanta, supra, 214 Ga., was proceeding, the condemnee may challenge the condemnor’s right to the taking on appeal. The jury determines damages and the trial court determines all factual and legal issues relating to what is to be taken. DeKalb County v. Jackson-Atlantic Co., 123 Ga. App. 695, 697-698 (182 SE2d 160) (1971). For this reason, the majority errs in distinguishing Woodside from the instant case. Moreover, I find it contrary to the spirit of Art. I, Sec. III, Par. II and to the decision in Woodside *328to conclude that a private citizen may do what a public condemnor may not do — encumber a person’s property with the grant of a private way for an extended period of time without paying just and adequate compensation therefor.
4. Having determined that a private way has been granted at the time of the assessors’ award, I will next examine what payment the Constitution requires for the private way that has been granted to date. I conclude that, as the condemnee has the right to contest the necessity for the taking in superior court, the condemnor must pay the assessors’ award into the registry of the superior court for the benefit of the condemnee as a condition precedent to his or her appeal. See Williams, supra, 213 Ga.; and Johnston, supra, 222 Ga. (in public purpose condemnation cases, if condemnee files equitable action contesting necessity, the condemnor must pay assessors’ award into registry of court). If the condemnee does not contest the necessity for the private way on appeal, as Cline does not (he has not contested the necessity from the beginning), then the condemnee may petition the superior court for disbursement of the funds. The reason is that at that time the issue of the necessity will be settled, as the condemnee may not raise any issue on appeal from superior court that he or she did not raise in superior court. See Westwind Corp. v. Wash. Fed. Savings &c. Assn., 195 Ga. App. 411 (1) (393 SE2d 479) (1990). However, if on appeal to superior court the condemnee does contest the necessity for the private way, the proceeds will remain in the registry of the superior court pending further appeal.
As for the condemnor’s right to abandon under OCGA § 44-9-47, I would hold that the condemnor may still maintain that right after the conclusion of all appeals. If the condemnor elects to abandon the private way, and if funds have previously been disbursed to the condemnee, then the condemnee will be required to refund the money to the condemnor. See generally OCGA § 22-2-82.
5. For the foregoing reasons, I conclude that a private way is granted within the meaning of Art. I, Sec. III, Par. II of the Constitution when the assessors’ award is entered. I further would hold that Art. I, Sec. III, Par. II required the appellee to pay the assessors’ award to the clerk of court as a condition precedent to his appeal to superior court. Accordingly, I conclude the trial court erred by failing to grant the appellant’s motion to dismiss the appellee’s appeal to superior court, and I would remand the case for the appellee either to decline to pay the assessors’ award and thus abandon the right of way under OCGA § 47-9-47 or to pay the award and thus retain the right of way.
I am authorized to state that Chief Justice Clarke and Justice Benham join in this dissent.
*329Decided July 12, 1993 Reconsideration denied July 30, 1993. Alexander & Royston, James B. Alexander, for appellant. Crudup & Hendricks, J. Gardner West, for appellee.Although Tilley was a de novo appeal to superior court from a probate court judgment, it has been held that appeals from assessors’ awards are governed by the same rules. See State Hwy. Bd. v. Long, 61 Ga. App. 173 (6 SE2d 130) (1939); Central of Ga. Power Co. v. Cornwell, 139 Ga. 1, 6 (76 SE 387) (1912).
The appellee argues that in Arnold v. Selected Sites, Inc., 229 Ga. 468 (192 SE2d 260) (1972), we held that appeals from assessors’ awards in private way condemnation actions did not violate the just compensation clause applicable to private way condemnations. The appellee’s interpretation of Arnold is incorrect. In Arnold, no constitutional attack was made upon the statutes providing for the appeal to superior court from the assessors’ award. Instead, the appellee contended that Code Ann. § 83.106.1 (now OCGA § 44-9-47) was unconstitutional because, at that time, it granted the condemnor 60 days following the determination of any motion for new trial or appeal in which to pay the compensation fixed by the jury on appeal to superior court. We held that this statute violated the just compensation clause applicable to private ways, but that it was separable from the other statutes prescribing the procedures for the grant of private ways so that the other statutes did not have to fall with it. For these reasons, Arnold is not precedent for the proposition urged by the appellee.
That provision provides that “just and adequate compensation . . . need not be paid until the same has been finally fixed and determined as provided by law.”