Donald Azar, Inc. v. Muche
326 Ga. App. 726
Ga. Ct. App.2014Background
- Azar has owned a lot east of Turner Field since 1959, abutting a former City alley, Telford Alley, which runs north-south along the block.
- USA Parking acquired most parcels around the alley between 1991 and 1996 and fenced the alley, which had been unused and overgrown since the 1970s.
- By 1997 USA Parking owned all parcels on both sides of the alley except Azar’s; the alley was closed and not passable.
- In 1998 USA Parking sought rezoning to commercial; Azar supported the application by signing the rezoning and attending the hearing as Muche’s agent.
- In 1999 the City rezoned portions of both properties and the plan showed the alley closed; USA Parking erected a wooden fence and other improvements in the closed alley.
- Azar filed suit in 2006 seeking to enjoin obstructions to the private way and for damages; USA Parking counterclaimed for title and an easement claim, with the case referred to a special master.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Azar abandoned his interest in the alley | Azar argues abandonment was not proven by the period used. | USA Parking contends abandonment was proven by long nonuse and city abandonment of the alley. | Abandonment proven; special master validly found no interest remaining. |
| Whether Azar had an implied easement by deed or grant | Deed reference to the alley implied an easement for Azar. | Abandonment and nonuse negate implied easement; no ongoing right. | No implied easement; evidence supports abandonment and loss of easement. |
| Whether Azar had a revocable parol license to use the alley | Azar relayed by license in exchange for support of re-zoning. | No enforceable parol license proven; even if license exists, no expense incurred by Azar to create an easement. | Parol license not established; nonexpending reliance defeats license-to-easement argument. |
Key Cases Cited
- Duffy St. S.R. O. v. Mobley, 266 Ga. 849 (1996) (sufficiency of evidence to support abandonment even with conflicting proof)
- Meinhardt v. Christianson, 314 Ga. App. 705 (2012) (parol license to use land; issuance of easement via reliance/expense)
- Cernonok v. Kane, 280 Ga. 272 (2006) (color of title claims; relevance to adjacent property owner claims)
- Graham v. Tallent, 235 Ga. 47 (1975) (exclusive appellate jurisdiction in title disputes; use of legality of title issues)
- Second Refuge Church of Our Lord Jesus Christ, Inc. v. Lollar, 282 Ga. 721 (2007) (standard for reviewing special-master findings in equity actions)
- Washington v. Brown, 290 Ga. 477 (2012) (in quiet title actions, findings supported by any evidence; deference to master and trial court)