It has been said that no good deed goes unpunished, and the proceedings up to now in this case seem to suggest the truth of that proposition. Canton Partners owns a parcel of real property in Troup County that is effectively landlocked and to which Canton Partners has no means of access, ingress, or egress. The parcel abuts an interstate highway,1 and it otherwise is surrounded by property that is owned by United Investment Company. The nearest public road from which Canton Partners might access its property is State Route 54, and to do so, it would have to cross the property of United Investment, as well as a tract of land that is owned by The Scarbrough Group, Inc.2 Rather than run straight to the courthouse, Canton Partners first set out to negotiate with United Investment and Scarbrough for a private way across their lands, and its negotiations with Scarbrough were somewhat successful, inasmuch as it obtained a temporary, one-year private way across the Scarbrough tract. The negotiations with United Investment, however, were not as successful, and at that point, Canton Partners turned to the courts for help, only to find that help was not forthcoming because it had successfully negotiated with Scarbrough before suing. Under OCGA § 44-9-40, when someone owns real property to which he “has no means of access, ingress, and egress,” and when “a means of ingress, egress, and access may be had over and across the lands of any private person or corporation,” the owner of the landlocked property may file a petition with the superior court for a private way, and if it is reasonable to do so, the superior court may condemn a private way over the lands of the others. OCGA § 44-9-40 b. When its negotiations with United Investment failed, Canton Partners filed such a petition against United Investment, seeking the condemnation of a private way across the United Investment land to link its landlocked parcel with its temporary way over the Scarbrough tract, which would allow Canton Partners to access its property from State Route 54, at least as long as it maintained a right to use the temporary way over the Scarbrough tract. The superior court concluded, however, that the condemnation of a private way across the United Investment property would be unreasonable, inasmuch as the condemnation would be permanent, whereas the negotiated way across the Scarbrough tract was only temporary. Accordingly, the superior court refused the petition against United Investment.
Instead of appealing the refusal of its petition, Canton Partners filed a second one, this time filing against both United Investment and Scarbrough and seeking the condemnation of a private way across both of their properties. The second petition, however, fared no better than the first.3 The court below dismissed the second petition as to Scarbrough, finding “as a matter of law that Canton Partners may not maintain an action to condemn a way across the Scarbrough tract when it currently has an existing right to use the identical property for a means of access by means of an access easement that was voluntarily bargained for and agreed upon by the parties.” The court below also dismissed the second petition as to United Investment, reasoning that nothing had changed since the dismissal of the first petition, and as against United Investment, the second petition was, therefore, barred by the principle of res judicata. Canton Partners appeals from the dismissal of its second petition, and we reverse.
