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BMH Real Estate Partnership v. Montgomery

Plaintiff could not allow defendants to adapt their private right of way on an old road onto a new road for 10 years and then deny defendants access to the new road.

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Hugh L. Montgomery, Jr. “Jack” and Hugh L. Montgomery, III, both individually and as co-executors under the will of Agnes L. Montgomery, filed a petition against BMH Real Estate Partnership “BMH” seeking to remove an obstruction from an alleged private way across the property of BMH. According to the petition, BMH constructed a new road in nearly the same location as a preexisting road “the old roadway” long used by the Montgomerys. BMH blocked off the entrance to the old roadway and installed a gate at the entrance to the new road. When BMH subsequently denied requested access to the new road, the Montgomerys sought relief under OCGA § 44-9-54 and 44-9-59.

The probate court ruled in favor of the Montgomerys. BMH then appealed to the superior court where a de novo proceeding was conducted without a jury. In a detailed order, the trial court determined that the Montgomerys “have acquired and do possess the rights of a private way over and along the new road.” The court ordered BMH to either furnish keys to its gate or remove the gate altogether within 48 hours.

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