§ 44-9-59. Obstructions; Proceedings for Removal; Petition; Rule Nisi; Order; Appeal; Fees

1. In the event the owner or owners of land over which a private way may pass or any other person obstructs, closes up, or otherwise renders the private way unfit for use, the party or parties injured by the obstructions or other interference may petition the judge of the probate court in the county where the private way has been in use to remove the obstructions; and, upon the petition being filed, the judge shall issue a rule nisi directed to the party or parties complained against calling upon the offending parties to show cause why the obstructions should not be removed and the free use of said private way reestablished. The rule shall be served by the sheriff or his deputy at least three days before the day set for the hearing; and when the day arrives the judge shall proceed to hear evidence as to the obstructions or other interference. If it appears that the private way has been in continuous, uninterrupted use for seven years or more and no steps were taken to prevent the enjoyment of the same, the judge shall grant an order directing the party or parties so obstructing or otherwise interfering with the right of way to remove the obstructions or other interference within 48 hours; and, if the party or parties fail to remove the obstructions, the judge shall issue a warrant commanding the sheriff to remove the obstructions immediately.
2. Except as otherwise provided in Article 6 of Chapter 9 of Title 15, either party who is dissatisfied with the judgment of the judge of the probate court pursuant to subsection (a) of this Code section may appeal to the superior court as a matter of right.
3. The fee of the judge of the probate court in a proceeding under subsection (a) of this Code section shall be paid by the losing party. The sheriff’s fees shall be the same as those charged for serving a petition or other process of court.

History. Ga. L. 1872, p. 60, §§ 2-4; Code 1873, §§ 738, 739, 740; Code 1882, §§ 738, 739, 740; Civil Code 1895, §§ 679, 680, 681; Civil Code 1910, §§ 825, 826, 827; Code 1933, §§ 83-119, 83-120, 83-121; Ga. L. 1953, Jan.-Feb. Sess., p. 519, § 1; Ga. L. 1986, p. 982, § 16.

Editor’s notes.

Ga. L. 1986, p. 982, § 25, not codified by the General Assembly, provided that that Act would apply to all cases filed on or after July 1, 1986.