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MEMORANDUM
To: William E. Holland Supervising Attorney
From: Chuk Obiechefu
Date: June 4, 2015
Re: Echols County Board of Commissioners – General File
Our File No. 34510.001WEH
Question Presented
Whether Echols County’s cessation of maintenance and abandonment of a county road
deemed to no longer serve a significant public purpose is justified when the road serves as the
only access to the properties of some of the owners adjoining the county road.
Brief Answer
Yes. Georgia law has established deference should be given to the county board of
commissioners when a decision is made as to the abandonment of a county road, as long as
maintenance of road is no longer within the public’s interest.
Discussion
Under Georgia law, counties are given the authority to abandon roads via the enactment
of Ga. L. 1973, p. 947, §1, and the present applicable statute. Ga. Code. Ann. § 32-7-1. The
statute provides, in part, that, when it is determined that a section of the county road system has
for any reason ceased to be used by the public to the extent that no substantial public purpose is
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served by it, the county may declare that section of the county road system abandoned. Id. This is
juxtaposed against the county’s duty to repair and maintain roads within its system. Ga. Code.
Ann. § 32-4-41(1). The method by which county roads are discontinued are provided by statute
as well. Ga. Code. Ann § 32-7-2(b). Upon discontinuance of maintenance, and the termination of
a public easement, the full ownership of the former roadway reverts to the adjoining owners,
each to the centerline. Calvary Independent Baptist Church v. Rome, 208 Ga. 312, at 313.
In the review of a county’s abandonment decisions, Georgia courts have consistently
established that, deference and discretion is to be given to the county board of commissioners
and their judgment. Smith v. Board of Commr’s, 264 Ga. 316, at 317 (1994) (citing McIntosh
County v. Fisher, 242 Ga. 66, 67). With regards to the public benefit of discontinuing a road,
courts have consistently upheld that the benefit may lie in not charging the public for the
maintenance of a street or highway that is no longer useful or convenient to the public.
Scarborough v. Hunter, 293 Ga. 431, at 436 (2013) (where the court ultimately upheld the
closure of a dead end road servicing purchased property lots containing no existing homes or
businesses). Where the road abandoned by the county is the sole access point to the dock on an
individual’s property, Georgia has upheld county’s decision to abandon. McIntosh, 242 Ga. 66,
at 67.
Furthermore, Georgia courts have upheld that the financial concerns of a county are a
valid basis for the abandonment of a road and not an abuse of discretion. Torbett v. Butts County,
271 Ga. 521, at 522 (1999) (where the court found the county factoring in the expense of a new
bridge in its decision to abandon the roadway a proper consideration). The burden of showing the
roadway in question’s maintenance is no longer within the public’s interest, rests on the county.
Sutton v. City of Cordele, 230 Ga. 681, at 683 (1973) (where the court required a showing from

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the municipality that the street is no longer useful or convenient to the public or that new street
will be laid out in its place.).
Georgia law recognizes a right of access to a public road as a property right and has
acknowledged that substantial interference with this right of access is the equivalent of a
“taking” of an easement and is a question of fact for a jury. Circle K General v. DOT, 196 Ga.
App. 616, at 617 (1990). Furthermore, abutting owners of a public road have a special easement
of access to their land over the public right of way. Barham v. Grant, 185 Ga. 601, at 604 (1938).
This easement consists of the right of egress from and ingress to the abutting public road and
from there to the system of public roads. Cobb County v. Annox Self Storage # 1, LLC, 294 Ga.
App. 218, at 220 (2013).
Property owners only have compensable injuries upon showing that access to a public
roadway has been inconvenienced by the county’s actions, and the inconvenience is special to
the landowner, and not general to the public. Dept. of Transportaion v. Durpo, 220 Ga. App 458,
at 460. Where the discontinuance of a roadway has led to a diminution in value of an abutting
landowner’s property, courts have held that those landowners have an avenue of redress in filing
a writ of mandamus to compel the roads continued maintenance. Swiney v. DeKalb County, 102
Ga. App. 731, at 732 (where property owner was not denied access to access to a public
roadway, but did suffer a diminution of value when maintenance and repair of the abutting road
ceased.).
Application
In this matter, Echols County is seeking the discontinuance of a 2 mile long county road
which forms a dead end at its conclusion. While there are a number of property owners along this
public roadway, a few among them apparently rely on the road as their sole means of accessing

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their property. Should the county follow through on its abandonment of the road, the
presumption, baring action otherwise, is that the roadway is disposed of with each of the
landowners property subsequently extending to the centerline of the 2 mile road.1
This
discontinuance of the road may be construed by the court to function as a termination of
easement by implication held by these few landowners. This is similar to Whitehead and
subsequent cases, which have established that homes abutting such roadways, especially those
“landlocked”, have an “easement of access” across the right of way.2
The property owners abutting the road in question cannot move for injunctive relief to
prevent the county’s certification of its intent to discontinue the road, as was wrongly attempted
by the landowner in Scarborough, as the county’s decision can only be reviewed after the fact.3
In any case, the landlocked landowners abutting the road in question have more or less two
avenues of redress available to them, in light of the County’s decision; (1) they can file a writ of
mandamus to compel the county authorities to keep up and repair the road as an established road4
as they have suffered or will suffer a diminution in value of their property, and/or (2) upon a
showing of damages unique to them due to substantial interference and/or termination of their
right of access, sue for compensable damages5
.
To address the first potential cause of action its necessary to reiterate that the county has
discretion in determining what factors constitute a road which’s maintenance is no longer being
within the public interest nor serves a significant public purpose.6
While it may be conceded that
1
Calvary Independent Baptist Church, 208 Ga. 312, at 313.
2
Dept. of Transportation v. Whitehead, 253 Ga. 150, at 151. Cobb County v. Annox Self Storage # 1, LLC, 294 Ga.
App. 218, at 220.
3
Scarborough, v. Hunter, 288 Ga. 687, at 690.
4
Swiney, 102 Ga. App 731 (1960)
5
. Durpo, 220 Ga. App 458, at 460.
6
Smith, 264 Ga. 316, at 317; Ga. Code. Ann. § 50-13-19(h)

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property owners do in fact have an easement of access upon the roadway, a court is unlikely to
find that the road amounts to a significant public purpose. McIntosh, is similar to the current
matter, as the landowners in question are most likely to center their defense on the potential
interference the road abandonment causes with their sole means of accessing their property.7
Here, Echols County’s discontinuance of the road is based on economic considerations, as the
maintenance costs of the 2 mile long dirt road, are funds which could be directed towards more
pertinent ends. As in Scarborough, the decision to abandon is for the benefit of the public,
particularly the benefit of not charging the public for a street no longer “useful or convenient” for
the general public.8
This is similar to Torbets, which found that the counties economic concerns
proper justification for the discontinuance of a road. 9
Furthermore, the current public road here only benefits a few adjoining property owners,
and the road’s discontinuance affects fewer still; the few landlocked property owners at the end
of the road. In addition, Echols County, as in McIntosh, has not made its decision to discontinue
not to benefit or penalize certain persons, which is generally condemned10
. Instead, in
accordance with both the statute and supporting jurisprudence, the county has discontinued the
road because the vast majority of the public do not use the roadway, so its maintenance is no
longer within the public’s interest. A writ of mandamus should be an effective avenue for the
landowners to obtain damages for diminished property values, but would most likely fail to
enjoin the discontinuance of the county road.
The second cause of action, or rather the second avenue of redress available to the road’s
adjoining landowners, specifically those landlocked, is to ask for compensable damages for
7
McIntosh, 242 Ga. 66, at 67.
8
Scarborough, 293, Ga. 431, at 436
9
Torbett, 271 Ga. 521, at 522 (1999)
10
McIntosh, 242 Ga. 66, 66

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termination of their easement of access. The facts of the matter make clear that those landowners
at the end of the roadway use the roadway as their sole means of access to their property. The 2
mile long county road abutting their property in itself is a means of accessing the nearest major
public road, and thus functions as an easement of access.11
The landlocked landowners will most
likely assert, as the most extreme position, that their right of access, their easement of access, has
been effectively terminated by the County’s decision to discontinue maintenance. By default
they are entitled to compensable damages.12
Discontinuance of the roadway and the interference with a property owner’s right of
access functions in a similar manner eminent domain action. As in Whitehead, the right of access
here has been interfered with, as the public road post disposition will be subsumed into the
private properties of adjoining landowner. Applying the standard set out in Whitehead and
subsequent cases, we see that the interference with the right of access with the landlocked
owners is indeed special to them, as they are the only ones truly affected by the discontinuance
of the road.13
The road is the sole access to their respective properties, and the general public
does not share in this inconvenience. This is distinguished form Durpo, as the DOT’s closure of
a section of the road in that case did not change the level of access to the road abutting the
plaintiff’s property.14
Conclusion
Echols County’s abandonment of the county road is proper and a court will like find the
landowners only entitled to compensable damages for diminution in property value and
termination of their easement of access.
11
Annox Self Storage # 1, LLC, 294 Ga. App. 218, at 220.
12
Whitehead, 253 Ga. 150, at 152 (1984).
13
Id.
14
Durpo, 220 Ga. App. 458, at 459

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