08 LC 29
3394ERS
The
Senate Judiciary Committee offered the following substitute to HB
1283:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
provide for legislative findings and purpose; to amend Article 2 of Chapter 4 of
Title 24 of the Official Code of Georgia Annotated, relating to presumptions and
estoppel, so as to provide that occupancy of a railroad right of way is with the
permission of the railroad corporation or railroad company, but such presumption
may be rebutted; to amend Chapter 5 of Title 44 of the Official Code of Georgia
Annotated, relating to acquisition and loss of property, so as to change
provisions relating to the law regarding the alienability of future interests;
to change provisions relating to how actual possession of lands is evidenced so
as to provide special provisions for railroad corporations or companies; to
change provisions relating to constructive possession of lands so as to provide
special provisions for railroad corporations or companies; to change provisions
relating to the extent of constructive possession under deed so as to provide
special provisions for railroad corporations or companies; to amend Code Section
46-8-100 of the Official Code of Georgia Annotated, relating to the general
powers of railroad companies, so as to provide that issues arising as to the
dimensions of property acquired by a railroad corporation or railroad company
prior to 1913 shall be determined by reference to the official map filed with
the Interstate Commerce Commission pursuant to the Railroad Valuation Act of
March 1, 1913; to provide for each railroad corporation and railroad company to
record such official map in the superior court in which the land is situated; to
provide for courts to take judicial notice of the information on such official
map that has been properly filed and recorded; to provide for certain property
interest for vested interest in property; to provide for related matters; to
repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
(a)
The General Assembly finds that the railroads and their rights of way in
Georgia:
(1)
Are essential to the continued viability of this state;
(2)
Are valuable resources which must be preserved and protected;
(3)
Are essential for the economic growth and development of this
state;
(4)
Provide a necessary means of transporting raw materials, agricultural products,
other finished products, and consumer goods and are also essential for the safe
passage of hazardous materials;
(5)
Relieve congestion on the highways and keep dangerous products and materials off
our highways;
(6)
Are vital for national defense and national security; and
(7)
Provide the most energy efficient means of transportation through this state,
thus minimizing air pollution and fuel consumption.
(b)
The purpose of this Act is to protect the rights of way of railroads from loss
by claims of adverse possession or other claims by prescription and to recognize
the dimensions of these rights of way as they were identified and defined nearly
100 years ago.
SECTION
2.
Article
2 of Chapter 4 of Title 24 of the Official Code of Georgia Annotated, relating
to presumptions and estoppel, is amended by adding a new Code section to read as
follows:
"24-4-23.2.
In
any action to establish a right, title, or interest in or to real property that
is a part of a railroad right of way, including a right of ingress or egress,
where such action is based upon occupancy of the railroad right of way by a
person or entity other than the railroad corporation or railroad company, there
shall be a presumption that any such occupancy of the railroad right of way is
with the permission of the railroad corporation or railroad company. Such
presumption may be rebutted."
SECTION
3.
Chapter
5 of Title 44 of the Official Code of Georgia Annotated, relating to acquisition
and loss of property, is amended by revising Code Section 44-5-40, relating to
conveyance of future interests or estates, as follows:
"44-5-40.
Future
and
vested interests
in
property or estates are descendible,
devisable, and alienable in the same manner as estates in
possession."
SECTION
4.
Said
chapter is further amended by revising Code Section 44-5-165, relating to actual
possession of lands, as follows:
"44-5-165.
Actual
possession of lands may be evidenced by enclosure, cultivation, or any use and
occupation of the lands which is so notorious as to attract the attention of
every adverse claimant and so exclusive as to prevent actual occupation by
another. As
to any claim which is not vested under this chapter prior to July 1, 2008, no
party shall attempt to establish possession of lands for purposes of this
article for any lands depicted within the applicable tract identified on the
official map of any railroad filed with the Interstate Commerce Commission
pursuant to the Railroad Valuation Act of March 1, 1913, Stat. 701, as amended,
unless such party establishes that such occupancy interferes with the operations
of such railroad corporation or railroad company; provided, however, that each
railroad corporation and railroad company shall file and record such official
map of the railroad with the superior court for the county in which such land
depicted on such official railroad map is situated. Any court of this state
shall take judicial notice of the information set forth in any such official map
properly filed and recorded by such railroad corporation or railroad company.
This Code section shall not be applied to adverse claims of aboveground
utilities which have been initiated but which have not vested prior to July 1,
2008; provided, however, that a railroad corporation or railroad company shall
not be precluded from enforcing rights of ownership against any adverse claims
which have not vested."
SECTION
5.
Said
chapter is further amended by revising subsection (a) of Code Section 44-5-166,
relating to the constructive possession of lands, as follows:
"(a)
Constructive possession of lands exists where a person who has paper title to a
tract of land is in actual possession of only a part of
the
such
tract. In such
a
case, his or
her possession shall be construed to
extend to the boundary of
the
such
tract. With
respect to a railroad corporation or railroad company, construction of the road
bed and track on the railroad right of way shall constitute actual possession
and occupancy of all lands depicted within the applicable tract identified on
the official map of the railroad filed with the Interstate Commerce Commission
pursuant to the Railroad Valuation Act of March 1, 1913, Stat. 701, as amended;
provided, however, that each railroad corporation and railroad company shall
file and record such official map of the railroad with the superior court for
the county in which such land depicted on such official railroad map is
situated. Any court of this state shall take judicial notice of the information
set forth in any such official map properly filed and recorded by such railroad
corporation or railroad
company."
SECTION
6.
Said
chapter is further amended by revising Code Section 44-5-167, relating to the
extent of constructive possession under deed, as follows:
"44-5-167.
Possession
under a duly recorded deed
will
shall
be construed to extend to all the contiguous property embraced in
the
such
deed. To the
extent that any such property is bounded on one or more sides by a railroad, and
the description of the property contained in such deed makes reference to the
railroad or the railroad right of way as a boundary for such property, such
reference shall be construed to mean that the boundary line is located at the
edge of the tract depicted on the official map of the railroad filed with the
Interstate Commerce Commission pursuant to the Railroad Valuation Act of March
1, 1913, Stat. 701, as amended, and such depictions contained on such official
railroad map shall be conclusive as to the location of the boundary line between
the property of the railroad and any adjoining property owner as of the date of
such railroad map; provided, however, that each railroad corporation and
railroad company shall file and record such official map of the railroad with
the superior court for the county in which such land depicted on such official
railroad map is situated. Any court of this state shall take judicial notice of
the information set forth in any such official map properly filed and recorded
by such railroad corporation or railroad
company."
SECTION
7.
Code
Section 46-8-100 of the Official Code of Georgia Annotated, relating to the
general powers of railroad companies, is amended by revising paragraph (3) as
follows:
"(3)
To acquire, purchase, hold, and use all such real estate and other property as
may be necessary for the construction and maintenance of said road and of the
stations, wharves, docks, terminal facilities, and all other accommodations
necessary to accomplish the object of the corporation; and to condemn, lease, or
buy any land necessary for its use;
provided,
however, that to the extent an issue arises over the dimensions of any such
acquisition by a railroad corporation or railroad company which occurred prior
to 1913, such dimensions shall be determined by reference to the documents
evidencing any such transaction and by examining the official map of the
railroad filed with the Interstate Commerce Commission pursuant to the Railroad
Valuation Act of March 1, 1913, Stat. 701, as amended, and such depictions
contained on such official railroad map shall be conclusive as to the dimensions
of any acquisition as of the date of such railroad map; provided, further, that
each railroad corporation and railroad company shall file and record such
official map of the railroad with the superior court for the county in which
such land depicted on such official railroad map is situated. Any court of this
state shall take judicial notice of the information set forth in any such
official map properly filed and recorded by such railroad corporation or
railroad company;"
SECTION
8.
All
laws and parts of laws in conflict with this Act are repealed.