329 Ga. App. 882
Ga. Ct. App.2014Background
- In 1998 James Earl Smith split ~10.2 acres into Tract 1 (to Rebecka Flory) and Tract 2 (to Earnest Smith), and both deeds referenced two gravel drives shown on plats plus a third gravel drive described only in text.
- The deed language describing the third drive differed slightly between the two deeds; Smith’s deed expressly subjected portions of Tract 2 within the bounds of the third drive to an easement benefitting Tract 1 and described the drive as providing “additional road access.”
- Smith later lost Tract 2 in foreclosure; Michael and Kylie Houston bought Tract 2 and their deed contained similar easement language but their survey and inspection did not show a drive running precisely along the Tract 1–Tract 2 line.
- Flory and Smith produced extrinsic evidence that a curved gravel drive has existed since 1978, mainly south of the property line (protruding 20–25 feet onto Tract 2 to bypass an embankment), and is used to access a spring, water lines, and a barn on Tract 1.
- After the Houstons tried to block use of that path, Smith and Flory sued for a declaratory judgment; the trial court granted summary judgment holding the deeds sufficiently described the easement, the Houstons had notice, and there was no abandonment.
Issues
| Issue | Plaintiff's Argument (Smith/Flory) | Defendant's Argument (Houstons) | Held |
|---|---|---|---|
| Whether the deed description of the third gravel drive is sufficiently certain to create an enforceable easement | Deed language plus plats supply a key; extrinsic evidence can fix precise alignment of the historic drive | Description is too vague/indefinite to locate and enforce an easement | Deed provided a sufficient key; extrinsic evidence may identify the easement as claimed by Smith/Flory — easement valid |
| Whether the easement was abandoned | Continuous use by Smith/Flory and family to maintain water lines and access barn shows ongoing use and intent to retain easement | Alleged obstruction (electric fence) and lack of refreshed gravel show nonuse and abandonment | No clear, unequivocal, decisive evidence of intent to abandon; mere nonuse insufficient — no abandonment |
| Whether Smith (as a lessee with option) could obtain relief | Smith acted as owner/beneficiary of easement rights and presented right to use; relief appropriate against Houstons | Smith lacks ownership interest in Tract 1 (only a lease) and thus lacks standing/title to enforce | Court declined to address those arguments on appeal because they were not raised below; not considered in this decision |
Key Cases Cited
- Shekhawat v. Jones, 293 Ga. 468 (discussing de novo review on summary judgment)
- Deaton v. Swanson, 196 Ga. 833 (a deed need not be perfect if it furnishes a key identifiable by extrinsic evidence)
- Champion v. Neason, 220 Ga. 15 (language like “as presently located” can supply a key to identify an easement)
- Turner v. City of Tallapoosa, 289 Ga. 138 (extrinsic evidence may clarify intent and location where deeds supply a key)
- Whipple v. Hatcher, 283 Ga. 309 (easements by grant require clear, unequivocal, decisive evidence of intent to abandon)
- Hardigree v. Hardigree, 244 Ga. 830 (mere nonuse alone does not constitute abandonment)