smith/burns LLC v. 905 Bernina Avenue Cooperative, Inc.
342 Ga. App. 358
Ga. Ct. App.2017Background
- 331 Elizabeth (plaintiffs) and 905 Bernina (defendants/Co-op) descend from a common parcel; a historic railroad spur ran between them and an alley provided access from a public street.
- The spur track has been filled and leveled with concrete and functions as access behind both buildings; a platform/loading area is attached to the 331 Elizabeth building and extends into the filled spur area.
- Plaintiffs use the spur/platform/alley for ingress, egress, parking, and business access to the second floor of 331 Elizabeth.
- Defendants built a fence partly on the spur/platform and permanent garden structures/retaining wall in the alley, blocking access.
- Cross-motions for partial summary judgment were referred to a special master; the master recommended plaintiffs own the platform in fee, plaintiffs have an express easement in the spur, but no express easement in the alley; the trial court adopted the report.
- On appeal, the Court of Appeals affirmed plaintiffs’ title to the platform and their express easement in the spur, reversed the denial of an express easement in the alley, vacated other recommendations, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ownership of platform attached to 331 Elizabeth | Platform is part of the building and passed in Dargan->EDC quitclaim; Smith/Burns holds fee simple | Platform lies outside deed metes-and-bounds; not conveyed in 1928 quitclaim | Platform is a fixture/improvement that was conveyed with 331 Elizabeth; plaintiffs have fee simple title; injunction to remove defendant structures affirmed |
| Easement in spur track | Plaintiffs’ chain of title conveys a perpetual right to use the spur; grant created an express easement broad enough for current uses | Any right was limited to railroad purposes or was abandoned by predecessors | EDC reserved a perpetual right in 1927 that created an express easement; scope includes plaintiffs’ current access uses; plaintiffs’ partial summary judgment on the spur affirmed |
| Scope/abandonment of spur easement | Use for ingress/egress and business-related activities is within scope; no clear abandonment | Prior acts (bridge, DOT payment) and changes in use extinguished or limited easement | No clear, unequivocal abandonment; easement survives for plaintiffs’ access uses |
| Easement in alley (express/extent) | Alley shown on 1915 plat and referenced in chain of title; plaintiffs hold an express easement across entire alley | Defendants argue plaintiffs abandoned or lost easement in portion adjacent to 905 Bernina by nonuse and by defendants’ long-continued obstructions | Court reverses trial court: plaintiffs do have an express easement in the alley by grant/chain of title; defendants did not show clear, decisive evidence of abandonment; remand for proceedings consistent with opinion |
Key Cases Cited
- Quarles v. Quarles, 285 Ga. 762 (procedural rule on summary judgment effect)
- Fulton County Bd. of Assessors v. McKinsey & Co., 224 Ga. App. 593 (improvements/fixtures pass with realty)
- Brigham v. Overstreet, 128 Ga. 447 (fixture doctrine: things intended to remain pass with land)
- Whipple v. Hatcher, 283 Ga. 309 (express easement = easement by grant; rules on interpretation and abandonment)
- Haley v. Regions Bank, 277 Ga. 85 (summary judgment: direct evidence vs. circumstantial evidence on factual disputes)
- Owens Hardware Co. v. Walters, 210 Ga. 321 (chain-of-title/plat references can convey easement rights)