Fordham sold Bateman some land, retaining for himself 22 contiguous acres otherwise landlocked, the deed of sale reciting that the grantor retained "a permanent easement which runs with the land [of the use of a described existing private road]. . . but said easement is strictly limited to the regular use of said private road for means of ingress and egress of farm trucks and automobiles of a maximum capacity of two tons and farm machinery of the type necessary to the cultivation and harvesting of farm crops on the adjacent lands of the grantor.” The complaint alleges that Bateman refused to allow anything to pass over the road except a vehicle of less than two tons, which renders the plaintiffs land useless except for small agricultural enterprises, and he seeks to have a 15-foot way of necessity superimposed on the 22-foot easement he now has for these restricted purposes. He further alleges that he has leased a part of his remaining land for purposes of outdoor advertising and Bateman refuses to allow the lessor to bring the signs across his road. Bateman filed a motion to dismiss for failure to state a claim which was granted by the trial court, and the appeal is from this judgment. Held:
l.Code Ann. § 83-101 et seq. represents one of the very few instances in real estate law where a right of condemnation inures to a private individual, but it does do so where the statutory conditions exist. There was, of course, no such right at common law, and the original Act of 1834 allowed ordinaries in the first instance to grant private ways to individuals to go from and return to their farms or places of residence. The law was entirely rewritten in Ga. L. 1967, p. 143 et seq., and we are now called
We do not agree. When the vendor appellant, like a workman painting himself into a corner, parted with his land under the deed stipulations he cut himself off from every possible use of his land except agricultural purposes. It would be very difficult, for instance, to build a residence on this 22-acre tract if no vehicle of more than two tons could enter, and no machinery could be brought in except that necessary for the cultivation and harvesting of crops. For these purposes the condemnor already has an adequate easement, for all other purposes he has none at all. The plaintiff’s situation therefore much resembles that of Jackson Electric Membership Corp. v. Echols, 84 Ga. App. 610 (66 SE2d 770). There the landowner, Echols, entered into a written agreement granting the corporation an easement to erect an electric transmission and distribution system over her land, which the corporation did. The easement relied on did not specifically designate the extent or location of the system to be erected, but when one was erected and maintained in reliance on the agreement this defect was cured. After a lapse of time the corporation sought to enter on the land for the purpose of erecting substantial additions and extensions to the system. This the electric company has no right to do, except by bringing another condemnation proceeding for the additional and extended uses to which it needed to subject the land.
The situation here is the same. The appellant might well have reserved a suitable easement for himself when he sold off the servient estate, but he failed to do so. The private road, so far as it constitutes an easement to his property, does so only for limited agricultural purposes. For any other business or
The trial court erred in dismissing the petition.
Judgment reversed.