Srochi v. Postell , 206 Ga. 59 ( 1949 )

For reasons stated in the opinion, the petition as amended did not state a cause of action for the relief prayed and, that being true, the court did not err in dismissing the petition on general demurrer.

No. 16788. OCTOBER 11, 1949. On May 11, 1945, Morris and Sidney Srochi filed a suit for injunctive relief against J. A. Postell. After being amended, the petition alleges in substance: The plaintiffs own a house and lot in the City of Atlanta known as No. 930 West Peachtree Street, N.W.. ; and the defendant owns the adjoining lot, No. 936, which is north of the plaintiffs' lot. For more than seventeen years a paved driveway, 11.7 feet in width, and extending back 35 feet from the street to the land of the plaintiffs, has separated the two lots. Part of the driveway, a strip approximately 4 feet wide in front, 2.6 feet wide at the rear, and extending back 35 feet from the street is on the defendant's land, and the remaining portion of it is on the land of the plaintiffs. The entire driveway was constructed by a prior owner of the plaintiffs' lot and exclusively for his use. The plaintiffs and their predecessors in title have continuously used the driveway since it was built, kept it open and in repair, and for the use of automobiles and trucks it is their only means of ingress and egress. Unless the plaintiffs' tenants are allowed to use the driveway, they will be unable to conduct their business and they, as well as the plaintiffs, will suffer an irreparable loss. The defendant purchased his lot from the plaintiffs during November, 1947. It had been owned by the plaintiffs since November 1, 1945. Thomas L. Barber conveyed to the plaintiffs the lot presently owned by them (No. 930) on February 13, 1946. At the time the plaintiffs purchased both of the lots, no survey of them had been made, and the plaintiffs thought that all of the driveway was on the Barber lot. During that period while the plaintiffs owned both of the lots, which was from February 13, 1946, until November, 1947, there was no merger of the easement, i.e., the prescriptive right which the plaintiffs and their predecessors in title had acquired to use that part of the driveway located on lot No. 936, and the fee-simple estate in the lot as presently owned by the defendant; but the two tracts were considered by the plaintiffs as separate parcels of land. When the plaintiffs sold the defendant his lot in 1947, they (the plaintiffs) did not intend to convey to him that portion of the driveway which is located on the lot conveyed (No. 936), and it was impliedly reserved by the plaintiffs as a way of necessity. The defendant, prior to his purchase from the plaintiffs, inspected both of the lots, and the driveway was then open, and "petitioners informed said defendant of the existence of said driveway." At the time the defendant purchased his lot, a physical inspection of the properties showed the driveway to be on the lot presently owned by the plaintiffs. The defendant has notified the plaintiffs of his intention to erect a wall in the driveway and has now begun the construction of it, and such a wall will, of course, interfere with the plaintiffs' use of the driveway. It was further alleged that, prior to the filing of this suit, the plaintiffs offered to pay the defendant $500 "as reasonable compensation for adjusting said purported encroachment, and said amount was refused by said defendant." The exception here is to a judgment sustaining a general demurrer to the petition as amended and dismissing the plaintiffs' case. 1. This is not a suit to reform a deed under the Code, § 37-215, but one for injunction to restrain the defendant from building a wall along the south boundary line of a city lot that he purchased from the plaintiffs, and upon the theory that it will interfere with their use of a private driveway. The plaintiffs predicate their claim for the relief sought upon a prescriptive right to use a private way without interference, which, according to the petition, is partly on the defendant's land. They contend: that a former owner of the land presently owned by them, more than seventeen years ago, built the driveway in question for his exclusive use and as a means of ingress and egress to his property; that it is less than fifteen feet in width; that it has been kept open and in repair since then by his successors in title, including the plaintiffs; that it has, since the date of its construction, been continuously used by the several successive owners of the land presently owned by the plaintiffs; and that it is now being used for the purposes for which it was originally built. Had the petition stopped with this, we think that it would have shown a prescriptive right in the plaintiffs to use that part of the driveway admittedly on the defendant's lot (Code, § 83-112); and following the ruling in Hall v. Browning, 195 Ga. 423 (3) (24 S.E.2d 392), and the cases there cited, the petition would have stated a cause of action for the relief sought; but from the pleaded facts we have an entirely different case. It affirmatively appears from the allegations of the amended petition that the plaintiffs, during November 1947, conveyed to the defendant all of their interest in the lot now owned by him, including that part of the driveway now in controversy, they being at the time the owners of both of the lots here involved; and it is elementary, of course, that the plaintiffs in these circumstances had the same right to convey any easement they had in the premises conveyed just as fully and effectively as they did to convey any other interest they had in the lot. And from the petition, as we see the case, it makes no difference whether there was or was not a merger of any separate estates in the defendant's lot while the plaintiffs owned it because, as the record shows, they conveyed to the defendant all right, title, and interest which they had in it, including, of course, the right to use any portion of the driveway located thereon, and it necessarily follows that, if they have been or will be injured because of the things complained of, it is the result of their own voluntary act. In other words, the plaintiffs by their conveyance to the defendant divested themselves of all interest of every character in the premises conveyed, and they must abide the consequences, however inconvenient they may be. The courts do not make contracts; it is their duty to enforce them.

2. In the instant case, the plaintiffs rely upon an implied reservation of an easement. It is their contention respecting this that they did not intend to convey to the defendant their right to use that part of the driveway located on the conveyed premises; that the defendant had notice of the existence and use of the driveway, and that their deed to the defendant therefore contains an implied reservation of the easement. There is no merit in this. The doctrine of implied reservation of an easement by the grantor of land has not been adopted in this State.Rogers v. Wilson, 171 Ga. 802 (3a) (156 S.E. 817);Carlton v. Seaboard Air-Line Ry., 143 Ga. 516 (85 S.E. 863, Ann. Cas. 1917A. 497); Charleston Western Carolina Ry.Co. v. Fleming, 119 Ga. 995 (47 S.E. 541).

For the reasons stated in the two divisions of this opinion, the petition as amended failed to state a cause of action for the relief prayed, and that being true, the court did not err in rendering the judgment complained of.

Judgment affirmed. All the Justices concur.