ORDER
A triаl was held in this adversary proceeding on September 23, 2013 (the “Trial”). Present at trial were Plaintiffs managing member, Joe Voyles, and Lisa McCrimmon, Ed McCrimmon, and Leon Jones, as Plaintiffs counsel. Also present were Defendant, Richard Franck, and his counsel, William Mitchell. Plaintiff Flyboy Aviation Properties, LLC (“Flyboy” or “Debtor”) alleges in its Complaint that Defendant, Richard Franck (“Franck”), trespassed on Debtor’s property, causing interference with business operations and lost revenue. Franck responded and counterclaimed, arguing that he has an easement to use the airport, and seeking such a declaration from the Court.
In an order entered September 10, 2013, the Court bifurcated the issues raised in the complaint, such that the only matter heard at Trial is “what interest, if any, Defendant has in Debtor’s property, and the nature of that interest. The issues of trespass, damages, and fees will be tried at a later date.” [Doc. No. 35].
After carefully considering the pleadings, the еvidence presented and the appli
I. JURISDICTION
Bankruptcy courts are courts of limited jurisdiction whose jurisdiction is “derivative of and dependent upon” the three categories of proceedings set forth in 28 U.S.C. § 1334. See In re Toledo,
II. FINDINGS OF FACT
A. Procedural Posture
This case was commenced in the Superi- or Court of Forsyth County as Flyboy v. Franck, No. 08-CV-0509, on March 5, 2008 (the “State Court Action”). [Doc. No. 1, Ex. 1]. Debtor is the owner of certain real property at 3747 Mathis Airport Drive, Suwanee, Georgia, out of which the Debtor runs a small private airport (the “Airport”). [Doc. No. 1, Ex. 2], Defendant Franck owns property in the neighborhood adjacent to the Airport, known as Mathis Airpark Subdivision (the “Subdivision”). The State Court Action arises out of Franck’s alleged trespass on Airport property, for which Flyboy sought an injunction. Franck counterclaimed, asserting an easement for use of the Airport proрerty, seeking damages for restricting his use of the Airport, and recording a notice of lis pendens against the Airport. [Doc. No. 1, Ex. 6]. Flyboy filed its Chapter 11 bankruptcy petition on March 15, 2013 and removed the State Court Action to this Court as an Adversary Proceeding on March 20, 2013, pursuant to 28 U.S.C. § 1452(a).
Defendant’s “Motion to Remand” [Doc. No. 8] the Complaint back to the Superior Court of Forsyth County was denied [Doc. No. 18], and a hearing was held in the main case on Debtor’s Motion For Authorization To Sell Real Properties Free And Clear Of Liens, Claims, Encumbrances, and Interests (the “§ 363 Hearing” and the “Sale Motion,” respectively). [Main Case Doc. No. 46, 47]. By the Sale Motion, Debtor seeks to sell approximately sixteen acres of land comprised of the fourteen acre Airport and two acres of adjacent property located in the Subdivision (collectively, the “Airport Property”). After the conclusion of the presentation of evidence, the Court announced it would not rule on the Sale Motion without first determining what rights, if any, Franck has to use the Airport and/or the Airport Property. The evidence presented at the
B. Facts
In the early 1980’s L.G. Mathis and Patrick McLaughlin began selling off lots in the Subdivision. [Franck Exhibits 10-14, Franck Exhibits are hereinafter referred to as “Ex. F-”]. A plat for the Subdivision was created in 1983 but was not recorded until 1995 or 1996. [Flyboy Exhibit 5, Flyboy Exhibits are hereinafter referred to as “Ex. FB -”]. Louis A. Musgrove, Jr. (“Musgrove”), was the predecessor in interest to Defendant, having purchased approximately 4.1 acres of land in the Subdivision in 1984 from L.G. Mathis and Patrick McLaughlin. [Ex. F 15; Ex. FB 1], Musgrove testified that before he purchased his property, he saw a plat map of the Subdivision which included the Airport. Musgrove testified that this plat was part of his incentive for purchasing property in the Subdivision. However, no plat was referred to in Musgrove’s deed and none was recorded at the time Mus-grove purchasеd his property.
In or around February, 1990, Musgrove completed construction of a hangar home, a building comprised of a top floor apartment and a hangar below. Musgrove accessed the Airport using Mathis Airpark Road, the road in front of his property, and the taxiway between the road and the Airport from at least 1989 through and including 2002 when he moved from the Subdivision. Musgrove used the taxiways, airport taxiways and runway on a regular basis during the time he owned property in the Subdivision without asking permission from the owner, C.J. Mathis. He also accessed the office at the Airport regularly to pay for gasoline purchases and for “hanging out for hangar flying” with other aviators. Musgrove had spent time at the office for these purposes since 1978. In addition, Musgrove jogged and walked on the Airport property while he lived in the Subdivision without seeking permission from C.J. Mathis. The Airport was a public Airport from the early 1960’s until 2001 when C.J. Mathis filed an application to convert the airport to a private airport. Musgrove testified that as a public airport, “pretty much anyone who wanted could come and go” from the Airport. In 2002, Musgrove rented the hangar home to Mr. Berndsen (“Berndsen”), who used the hangar to store an airplane and a disassembled project plane. Musgrove testified that he believed Berndsen used Mathis Airport Road and the taxiway between the road and the Airport from 2002 until Mus-grove sold his property to Defendant in March, 2004.
When Musgrove purchased his property in 1984, he received a document at closing titled “Addendum To Settlement Statement” (the “Addendum”), which states:
As part of the consideration of this purchase and sale, Sellers agree that Purchasers shall be allowed to join taxiways to airport taxiways of Mathis Airport and to have use of landing strip as long as Mathis Airport shall continue as an airport; however this shall not restrict Sellers’ right to sell said airport property as an airport or for other uses.
Purchasers agree that they will not operate an aircraft repair service on the subject property so long as an aircraft repair service is maintained at Mathis Airport.
This agreement shall survive the closing of this transaction.
[Ex. FB 2; Ex. F 17]. Musgrove believes he had an easement to use the taxiways (the private subdivision roads) and the Airport taxiways and runways based upon the easement granted in the Addendum, but did not consider his activities at the Airport office or walking/jogging on Airport
Mr. and Mrs. McCrimmon moved into the Subdivision in 1992. The McCrim-mons purchased their property from a Mr. McGrath who had purchased property in the Subdivision in or about 1980. Mrs. McCrimmon testified that in 1992 there were planes using Mathis Airpark Road to taxi to the Airport. The McCrimmons received an easement from C.J. Mathis in 1992 when they purchased their property in the Subdivision. They subsequently received an easement from Debtor as well, and both easements were recorded. [Ex. F 5]. Walter and Alice Propheter, residents of the Subdivision since 1983, testified that residents, including Musgrove and Franck, regularly taxied on Mathis Air Park Road and onto the taxiways and runway at the Airport and that Mrs. Pro-pheter regularly walked on the taxiways.
In 1997, certain homeowners, including Musgrove, performed maintenance on Mathis Airpark Road by having a portion of the road/taxiway paved. The residents also cleared brash adjacent to the taxiway. Mr. Propheter and Mr. McCrimmon testified that the residents paid for paving work to be done in 1997 and Mr. McCrim-mon stated that all but two residents contributed funds for the road paving project. Mrs. Propheter testified that she saw neighbors doing cleanup work close to the Airport and a tractor parked between Mathis Airport Road and the Airport taxiway. Mrs. McCrimmon testified that the neighbors maintained Mathis Air Park Road and the sixty (60) foot right of way easement but not any of the runway. Mr. McCrimmon and Musgrove testified that neighbors did not do any work on Airport property. In contrast, Mr. Propheter testified that in 1999 brush was removed from the Airport property on or near the runway. Mr. Propheter did not participate in the clean up but testified that he saw the work being done.
In addition to the Addendum, sometime between 1989 and 1991, Musgrove signed a document entitled “Declaration of Covenants, Conditions Restrictions and Easements For Mathis Airport Subdivision” (the “Declarations”). [Ex. F 32], Other signatories to the Declarations included the developers of the Subdivision, L.G. Mathis and Patrick McLaughlin, and C.J. Mathis. It appears that not all of the residents of the Subdivision executed the Declarations because the McCrimmons’ predecessor in title, McGrath, did not sign the Declarations.
Musgrove understood that the Declarations were “never filed and made enforceable.” The Declarations reference two Exhibits that are not attached to the document and were never prepared. There were later versions of the Declarations that were generally acceptable to the residences of the Subdivision, but McLaughlin refused to sign a subsequent version of the Declarations. After the revised Declarations were drafted and were not signed by McLaughlin, McLaughlin fenced off part of a Subdivision road which prevented a resident from taxing his airplane to the Airport. This led to litigation that lasted twelve years to determine the residents’ ability to use the roads within the Subdivision including Mathis Airpark Road. [Ex. FB 18].
In November, 2007, McLaughlin and L.G. Mathis deeded the private roads in the Subdivision to Mathis Airpark Residence’s Association, Inc. (“MARA”). [Ex. FB 5; Ex. F 19]. The litigation over Mathis Air Park Road ended with the entry of a consent order on November 28, 2007, that provided in part,
*817 Each owner of property and their successor in title bordering i.e. sharing a common boundary line with Air Park Road, alsо known as Mathis Air Park Road.... shall own fee simple title to the center of said Air Park Road which is adjacent and contiguous to said owner’s property... .Each owner of such property and their successor in title shall have easement for ingress and egress to such owners’ property, as necessary, over other such owners’ property and interest in said road....
[Ex. F 29]. Franck started MARA in 2007, approximately 21 days prior to MARA receiving the quit claim deed for the roads. Mrs. Propheter testified that currently the home owner’s association does maintenance on the road and mail boxes and that “everyone has the opportunity to join the association.”
Franck purchased the Musgrove property on March 30, 2004. [Ex. FB 1; Ex. F 16]. At that time, C.J. Mathis owned the Airport. [Ex. F 11, 12], Franck did not buy his property based on a recorded plat. He saw a plat prior to purchasing his property but could not identify the 1983 plat. For approximately a year and a half after the purchase, Franck continued to rent the hangar home to Berndsen. Berndsen had a plane and continued to access the Airport after Franck’s purchase of the Musgrove property. In 2005, Berndsen paid to use the Airport while he lived in the hangar home. [Ex. FB 89]. From 2004 to 2008, Franck had access to the Airport for the use of his plane, walking and biking; Franck never asked to use the Airport Property and was never questioned about his activities. However, since March, 2008 he has been blocked from using the Airport by Debtor.
After buying the Musgrove property, Franck purchased an additional piece of land that was annexed to the Musgrove property. [Ex. FB 3]. The combined parcel was subdivided and in May, 2005, Franck sold two of the four parcels to his brother, including tract # 4, which fronts Mathis Air Park Road. [Ex. F. 12, 13; FB 7, 9]. It is not clear what amount Franck was paid for these transfers. Franck built a house on his property around 2005-2006, and resided there until April of 2012. He then rented the house from April, 2012 through May, 2013. Franck currently lives in North Carolina. After selling the front tract of the combined property to his brother, Franck and his brother constructed a 60'x70' hangar on tract # 4. [Ex. FB 13].
Flyboy purchased the Airport Property on June 11, 2004. [Ex. F 23]. Franck asserts an easement to use the taxiways located on the Airport Property, the Airport runways and Mathis Airpark Road. Franck asserts that his easement arises either from prescription, necessity, implication, or express grant. Each of these theories is addressed below.
III. CONCLUSIONS OF LAW
Georgia law governs the determination of Franck’s interest in taxiways and runways on Debtor’s property. O.C.G.A. § 44-9-1 outlines the methods by which one can gain the right to access another’s property:
The right of private way over another’s land may arise from an express grant, from prescription by seven years’ uninterrupted use ... by implication of law when the right is necessary to the enjoyment of lands granted by the same owner.
O.C.G.A. § 44-9-1. In his various pleadings, Franck asserts numerous theories pursuant to which he gained the right to use Airport Property: easement by prescription, easement by necessity, an ex
A. Prescriptive Easement
Georgia law states with regard to prescriptive easements, “[wjhenever a private way has been in constant and uninterrupted use for seven or more years and no legal steps have been taken to abolish it, it shall not be lawful for anyone to interfere with that private way.” O.C.G.A. § 44-9-54. Georgia courts have developed and continually applied “four well known requirements” to determine if a party has obtained a prescriptive easement: “(1) that uninterrupted use of the crossing had continued for seven years оr more; (2) that the width of the crossing did not exceed twenty feet; (3) that the width did not deviate from the number of feet originally appropriated; and (4) that [the prescriber] kept the crossing open and in repair for seven uninterrupted years.” Jackson v. Norfolk S. R.R.,
(i) Use for Seven Years
In order to establish a prescriptive easement, Franck must prove that adverse use has occurred for seven years or more. While Franck has not owned property in the Subdivision for long enough to satisfy that requirement, the time period required to establish a prescriptive easement can be tacked. “The only requirements are that the successive users have privity of title and that the use by the predecessor in title must have been adverse and must have met all the requirements for establishing a prescriptive easement.” Trammell v. Whetstone,
O.C.G.A. § 44-5-161 states that “[pjermissive possession cannot be the foundation of a prescription until an adverse claim and actual notice to the other party.” Indeed, “[w]hen the use of a private way originates by permission of the owner, prescription does not begin to run until the user notifies the owner, by repairs or otherwise, that he has changed his position from that of a mere licensee to that of a prescriber.” McGregor,
Testimony at both the § 363 Hearing and the Trial was that there were no barriers between the Airport and those who wished to use it. Franck himself stated that he had no issues using the Airport before Flyboy installed a gate in 2008. The mere fact that C.J. Mathis, the owner of the Airport, did not expressly give Franck permission does not mean that Franck’s use was adverse. C.J. Mathis acquiesced to the use, and at the same time, neither Musgrove nor Franck gave Mathis notice that he intended his status to be anything other than as a licensee, or exercising rights pursuant to Musgrove’s express easement. Musgrove testified that he had an easement, and thus understood he had pеrmission to use the Airport. Consequently, any use by Mus-grove was permissive pursuant to the Addendum. Further, Berndsen’s use was permissive as shown by the payments to Debtor. It was not until Flyboy revoked its permission that problems ensued, and since then, Franck has not been able to use the Airport.
(ii) Open and in Repair; Notice
Because the time period for the adverse claim of right to the taxiways and runway can only begin once the owner of the property has notice, the claimant must demonstrate that the owner of the Airport had notice of Musgrove’s attempt to gain a prescriptive easement. A claimant attempting to gain a prescriptive easement must show that they openly repaired the property, or otherwise gave notice of an adverse claim. Thompson v. McDougal,
Franck’s testimony at the § 363 Hearing was that he had once volunteered to help with a “fair” of sorts to attract new Airport club members and business, and that he “pointed out” Airport code violations to County officials. [Ex. FB 22, 36]. Additionally, the evidence established that over 30 years the residents only performed repairs to Mathis Airpark Road and trimmed some brush that was not on the Airport property on two or three ocсasions. The only testimony that neighbors performed maintenance on the Airport Property came from Mr. Propheter, and was contradicted by the testimony of Mrs. Propheter, Mrs. and Mr. McCrimmon and Musgrove. Even if Mr. Propheter was correct that neighbors, on one occasion, cleared brush from the runway, this activity is not sufficient to provide notice.
(iii) Width of Easement
The third requirement to establish prescription is that the easement may not be wider than twenty (20) feet. The only evidence regarding the width of the Airport taxiways and Mathis Airpark Road came from certain plat maps that indicate that Mathis Airpark Road is sixty (60) feet wide, and testimony that the wingspan of an airplane used by Musgrove ranged from thirty-six to thirty-eight feet. [Ex. FB 5; F 21, 24]. There was no evidence presented on the width of the taxiway on the Airport property or the width of the Airport runway. Thus, the third element has not been proven.
(iv) No Deviation of Easement
The final requirement to gain a prescriptive way is to prove that the width of the easement has not deviated during the time of appropriation. There was no evidence presented that addressed this necessary element. Franck’s claim to a prescriptive easement fails because there is no evidence of notice of adversity, no evidence of seven years use after such notice of adversity and no evidence of the width of the taxiways and runways.
B. Easement by Necessity
Defendant next argues that he has an easement by necessity, because the Airport property and the Subdivision property were once an entire parcel, which was divided into separate parcels and sold over time. [Ex. F 10-14]. Georgia law states that a right of private way by necessity can be acquired “by implication of law when the right is necessary to the enjoyment of lands granted by the same owner.” O.C.G.A. § 44-9-1. Georgia law recognizes an easement by necessity,
when the common owner sells the dominant estate first and retains the servient estate. The common owner is impliedly*821 deemed to have granted an easement to pass over the servient estate. However, if the common owner sells the servient estate first ..., he has deeded everything within his power to deed and retains no easement in the servient estate. Therefore, when the common grantor subsequently deeds the dominant estate to a third party, the third party can obtain no higher interest than that of the grantor and receives no easement over the servient estate.
Burnette v. Caplan,
Franck relies on the case of Hynes v. City of Lakeland,
Although the Court believes that a Georgia court may agree with providing a way of necessity for airplanes given the holding in Pierce v. Wise,
A further important distinction between Hynes and the issue presented here is that the Florida statute construed in Hynes looks to “beneficial use or enjoyment” of the landlocked parcel, while the controlling Georgia statute and case law does not impose such a qualification on the necessity for the easement sought. Georgia law governing easements by necessity is strictly construed, and looks solely to the necessity of accessing such a landlocked parcel, and to the order in which such parcels are sold. See Moore v. Dooley,
The facts presented at trial do not comport with the Georgia requirements for an easement by necessity because Franck has ingress and egress to his property by use of drivеways and roads not owned by Flyboy. There was no evidence presented that Franck’s property is incapable of being used and enjoyed without access to Flyboy’s property. Indeed Franck subdivided his property and built a “subdivision” house [Ex. FB 15] on one of his remaining two parcels. Clearly the land is not idle or unusable. As such, Franck’s argument of easement by necessity fails.
C. Easement from Covenants, Conditions, and Restrictions
Franck argues next that the Declarations signed by numerous Subdivision residents grants an easement to Franck’s predecessor in title, and then to Franck, to use the Airport and taxiways. [Ex. F 32], The Declarations were not signed by all owners of lots in the Subdivision as evidenced by the lack of signatures from the McCrimmon’s predecessor in title, and did not include exhibits A and B, referenced in the Declarations. Testimony at Trial was that the Declarations were the earlier of numerous drafts of an agreement that aimed to form a homeowners association that could take possession of and maintain thе private Subdivision roads, in exchange for an easement that each lot owner could use to access the Airport. Musgrove, Franck’s predecessor, signed the Declarations, but testified that he did not think the document became enforceable because it was not recorded. The Declarations fail to create an enforceable easement as discussed below.
1. The Declarations Do Not Comply with the Statute of Frauds
Georgia law states that contracts which pertain to “the sale of lands, or any interest in, or concerning lands” must be in writing and signed. O.C.G.A. § 13-5-30. Because the Declarations provided for conveyance of the private roads and an easement, interests in land, it is subject to the Statute of Frauds. “To satisfy the Statute of Frauds, a contract for the sale of property must state a clear and definite description of the property.” White v. Plumbing Distribs., Inc.,
Parol evidence is admissible to show “precise locations and boundaries” of such land or clarify a vague description. White,
In White v. Plumbing Distribs., Inc., thе Plaintiff sought a declaration that a sales agreement to purchase an undeveloped tract of land was unenforceable because it lacked a sufficient description of the property, rendering the contract void under the Statute of Frauds. White,
The White court found that even if it was assumed that the property in question, the surrounding property, and the commercial properties identified in the master plan shared a common boundary, the master plan in Exhibit A was “devoid of any indicia upon which the parties might determine the metes and bounds of the [property insofar as these would be internal.” White,
The Declarations identify the original parcel of Subdivision land based on land lot numbers in the specific district of For-syth County, which is “more particularly described on that certain plat, copy of which is attached hereto marked ‘Exhibit A.’ ” [Ex. F 32], The Declarations also state those who signed the document had
2. The Declarations do not Constitute a Valid Contract
Georgia law states that the essentials of a contract are as follows: (i) the parties must be able to contract; (ii) consideration; (iii) the parties must assent to the terms of the cоntract; and (iv) there must be a legal and operable subject matter. O.C.G.A. § 13-3-1. While there is no dispute as to the parties’ ability to contract or the legality of the subject matter, the Court cannot find that there was assent to the Declarations.
Debtor argues that the contract failed because there was a lack of consideration. The Court does not agree. “All that is required by the law for a contract to have the element of consideration is that the contract furnish a key by which the consideration may be ascertained.” 7 Ga. Jur. Contracts § 1:30 (citing Newell Recycling of Atlanta, Inc. v. Jordan Jones & Goulding, Inc.,
Even though there was consideration, the contract is still unenforceable because there was no meeting of the minds. “It is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject-matter, and in the same sense.” Cox Broad. Corp. v. Nat’l Collegiate Athletic Ass’n,
The undisputed testimony at Trial was that the Declarations were not the final form of the document; not all Lot Owners executed the Declarations and the documеnt was never finalized or recorded. The subsequent drafts were not amendments to the document admitted at trial, but simply later drafts, demonstrating that not all parties agreed upon the previous terms. The HOA was not formed subsequent to the signing of the Declaration, and the private roads were not deeded to the residents as was evidenced by the later litigation on the very roads that were supposed to be the subject of the Declarations. While there was testimony that residents did perform maintenance on Mathis Airpark Road, they did so under their own volition, not pursuant to the Declarations. Accordingly, there was no contract formed because there was no assent to the terms of the proposed agreement.
D. Express Grant
Musgrove received the Addendum from L.G. Mathis in 1984 and Franck received the Addendum at the closing of his purchase of Musgrove’s property in 2004. On that basis, Franck argues that he has the same rights as Musgrove under the Addendum.
The Addendum created an appurtenant easement because it was “created to benefit the possessor of the land in his use of the land,” as opposed to an easement in gross, which is “a mere personal right in the land of another” Church of the Nativity, Inc. v. Whitener,
The rules of contract construction and interpretation apply to express easements. National Hills Exchange, LLC v. Thompson,
Debtor argues that the Addendum is not effective because it states “[t]his agreement shall survive the closing of this transaction,” and that this language refers only to the Mathis/Musgrove closing. Because an appurtenant easement is transferred when the dominant estate is sold, even if the easement is not expressly mentioned in the conveyance, the Court does not agree with Debtor’s argument. See Church of
The Addendum is not unlimited, rather it states that the owner of the Mus-grove property has access to the Airport and use of the easement, “as long as Mathis Airport shall continue as an airport; however this shall not restrict Sellers’ right to sell said airport property as an airport or for other use.” [Ex. FB 2; F 17]. Although Georgia law does not favor the termination of easements, courts look to the intent of the parties and the plain language of the easement in determining its application. The language of the easement is clear that the grantor did not intend for the easement to continue in perpetuity, rather the grantor retained the ability to sell the Airport and to change the use of the Airport property. The language of the easement is clear that the easement will terminate if the Airport property is no longer used as an airport. Thus, once the Airport is sold for another use, Franck’s easement is extinguished by its express terms. See Weaver v. Henry,
Although Franck received the Addendum from Musgrove in 2004, it is undisputed that he did not record the Addendum until 2005, after Debtor purchased the Airport. [Ex. FB 2, Ex. F 17, Ex. F 23]. Franck argues that Flyboy had notice оr should have had notice of his easement, such that it is bound by the Addendum. Thus, the Court must next consider whether Flyboy is subject to or took free of the easement because the Addendum was not recorded prior to Debtor’s purchase.
E. Notice of Express Easement
O.C.G.A. § 23-1-17 states that “[n]otice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it afterwards found that such inquiry might have led. Ignorance of a fact due to negligence shall be equivalent to knowledge in fixing the rights of the parties.” Deljoo v. SunTrust Mortg., Inc.,
Whether a bona fide purchaser has notice of an unrecorded easement will depend upon the degree of obviousness of the physical features of the property subject to the easement. Some features such as the existence of utility poles are so obviously a physical fact of the existence of an easement that a purchaser will be charged with notice as a matter of law. Webster,
In contrast, a feature that at one time was obvious, but over time has become obscure does not constitute notice of an easement. Parrott v. Fairmont Dev., Inc.,
It is undisputed that Franck did not record the Addendum until after Debtor purchased the Airport Property. However, lack of recordation is not the sole test to determine if Flyboy bought the property subject to the easement. Flyboy will be subject to the easement if there was visible evidence on the land itself that provided notice.
At the time Flyboy purchased the Airport, there was a taxiway between Mathis Air Park Road and the Airport and hangars on three adjacent properties. [Ex. F 3, 4], Specifically, there was a hangar-home on Franck’s property, the McCrim-mon’s hangar and one large hangar and 3 T-hangars on what was referred to as the Durham property. [Ex. F I], In addition, Debtor’s principal admitted that he had heard the Subdivision called Mathis Air-park Subdivision and had seen planes taxi on Mathis Airpark Road. While an inspection of the real estate records would not have revealed Franck’s express easement, an inspection of the property revealed three lots that contained structures for housing planes and the taxiway between the Subdivision and the Airport. When these features are considered along with Debtor’s knowledge that planes were taxied on Mathis Air Park Road and that the area was known as an Airpark there were sufficient visible indications to provide notice to Flyboy of the Addendum easement. These physical features and knowledge
IV. CONCLUSION
Franck seeks to expand the easement granted in the Addendum though various theories all of which fail. Franck received an express easement from Musgrove that allows use of the Airport Property until such time as the Airport is no longer used as an airport. The grantor’s intent in the Addendum is clear, to reserve for himself the ability to sell the property and/or change the use of the Airport and terminate the Addendum easement. Because of the obvious physical characteristics of the taxiway and adjacent propertiеs, Debtor was on notice and is bound by the Addendum, notwithstanding the lack of recordation of the Addendum prior to Debtor’s purchase of the Airport.
Notes
. Defendant argues in his reply brief that he alternatively may have acquired an easement by adverse possession. O.C.G.A. § 44-5-161 states, "(a) In order for possession to be the foundation of prescriptive title, it: (1) Must be in the right of the possessor and not of another; (2) Must not have originated in fraud [ ]; (3) Must be public, continuous, exclusive, uninterrupted, and peaceable; and (4) Must be accompanied by a claim of right, (b) Permissive possession cannot be the foundation of a prescription until an adverse claim and actual notice to the other party.” Further, O.C.G.A. § 44-5-163 states that a period of 20 years of adverse possession will confer good title. Franck did not argue this theory at trial, but an assertion of adverse possession fails for various reasons: there was no testimony that Franck gave notice of his claim оf adverse possession, and testimony was that numerous planes used the airport, negating a finding of exclusivity.
. Nor would it be sufficient to convert a license to an easement since there was no evidence of funds spent on Airport property. See Lowe’s Home Ctrs., Inc. v. Garrison Ridge Shopping Ctr. Marietta, GA., L.P.,
. In his Motion for Summary Judgment, Franck alternatively argues that he has an easement by implication. [Doc. No. 1, Ex. 54], In Georgia, an implied easement is classified as an easement by necessity, and arises "[w]here a landowner sells part of his land which is accessible only across the remaining land.” 1 Pindar's Ga. Real Estate Law & Procedure § 8:20 (7th ed.).
. If the plat and/or the description of the lot owner's properties were in existence at the time the Declarations were executed, the reference in the Declarations could have allowed incorporation of the descriptions into the document. See Chicago Title Ins. v. Investguard, Ltd.,
. See Kiser v. Warner Robins Air Park Estates, Inc.,