FRANKLIN S. SCARBROUGH v. BRITTANY MCCABE CARSON PHILLIPS ( 2024 )

FIFTH DIVISION
MCFADDEN, P.J.
BROWN AND MARKLE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
February 8, 2024
In the Court of Appeals of Georgia
A23A1228. SCARBROUGH v. PHILLIPS et al.
MCFADDEN, Presiding Judge.
This is a dispute between neighbors about the placement of underground utility
lines. The lines are located on plaintiff Franklin Scarbrough’s property and serve the
property owned by defendants Brittany McCabe Carson Phillips and the estate of her
father (together, “Phillips”). Scarbrough argues that the trial court erred by granting
summary judgment to Phillips and holding that she has the right to keep the utility
lines in their current location even though that location is not within the boundaries
of a recorded express easement. We hold that the trial court did not err. So we affirm.
1. Background
“[T]o prevail on a motion for summary judgment, the moving party must
demonstrate that there is no genuine issue of material fact, so that the party is entitled
to a judgment as a matter of law.” Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697
SE2d 779) (2010) (citations and punctuation omitted). When a plaintiff moves for
summary judgment, he “has the burden of establishing the absence or non-existence
of any defense raised by the defendant.” Vance v. FD 2011-C1 Grove Rd. Ltd.
Parnership, 340 Ga. App. 36 (795 SE2d 747) (2016) (citation and punctuation
omitted). When a defendant moves for summary judgment, he has the burden of
“either presenting evidence negating an essential element of the plaintiff’s claims or
establishing from the record an absence of evidence to support such claims.” Cowart,
287 Ga. at 623 (1) (a) (citation and punctuation omitted).
“We review a grant or denial of summary judgment de novo and construe the
evidence in the light most favorable to the nonmovant. Because this opinion addresses
cross-motions for summary judgment, we will construe the facts in favor of the
nonmoving party as appropriate.” 905 Bernina Avenue Coop. v. Smith/Burns LLC, 342
Ga. App. 358, 361 (1) (802 SE2d 373) (2017) (citation and punctuation omitted).
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So viewed, the record shows the following undisputed facts. Scarbrough and
Phillips are owners of adjacent properties and have common predecessors in title,
William Dudley Hunt III and Ellen Yancey Hunt.
On April 1, 1994, William Dudley Hunt III first acquired the parties’ property
as a single parcel. Four days later, he conveyed the property to himself and Ellen
Yancey Hunt as tenants in common.
The Hunts lived in a house on the portion of their property that would
eventually become Scarbrough’s parcel. By 1997, the Hunts had completed the
construction of another house on their property, this one on the portion that
eventually became Phillips’s parcel. That house is serviced by water and electrical
lines that were buried on what has become Scarbrough’s parcel.
In 2001, the Hunts by warranty deed conveyed to their daughter and her
husband two acres of their property, including the house the Hunts had built. The
warranty deed included the grant of a permanent easement over the property retained
by the Hunts. The warranty deed described the easement as “a non-exclusive
perpetual easement of ingress and egress, 30 foot in width . . .” and provided that the
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“easement is granted for the purposes of ingress and egress and the laying of utility
lines along said easement.”
But the undisputed evidence shows that when the express easement was
granted, the utility lines at issue already had been installed. The Hunts and their
daughter and her husband also entered an agreement in which the daughter and her
husband agreed to pay $50 per month for maintenance of the easement.
Appellee Phillips and her father purchased the two-acre parcel in 2013. Their
warranty deed references the easement and the easement maintenance agreement. In
2016, appellant Scarborough purchased the Hunts’ remainder from the Hunts, subject
to the easement and the easement maintenance agreement.
In 2018, Scarbrough sued Phillips, alleging that her property’s underground
utility lines were not buried within the boundaries of the express easement and so
amounted to a trespass. He sought an injunction requiring Phillips to remove the
utility lines and to reinstall them within the easement area. He also sought damages
for trespass, payment of the unpaid easement maintenance fees, and costs and
attorney fees.
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Phillips filed a counterclaim for a declaratory judgment, injunctive relief, and
damages for nuisance and interference with her right of quiet enjoyment. She
contended that she had an easement for the location of the utility lines.
The trial court appointed a special master, who ruled on the parties’ cross-
motions for summary judgment, finding in favor of Phillips. Scarbrough objected to
his report (which is not in the record), and the trial court considered the summary
judgment ruling de novo. The court held that Scarbrough was entitled to summary
judgment on his claim for the recovery of missed $50 payments under the easement
maintenance agreement. But the trial court held that Phillips was entitled to summary
judgment on all of Scarbrough’s other claims. Scarbrough filed this appeal.
2. Phillips’s property interest
In ruling that Phillips has a property interest that allows the underground utility
lines to remain in their current location on Scarbrough’s property, the trial court held
— and the undisputed facts show — that “the utilities placed upon [Phillips’s]
property have been in existence since 1996, twenty years before [Scarbrough]
purchased his property. More importantly, the utilities — both the placement and
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their right to exist — were wanted by the common owner of both the [Scarbrough and
Phillips] properties. . . .”
Under these facts, Phillips has a property interest arising from a quasi-easement
that allows her to maintain the utility lines in their current location:
[a] quasi-easement is an easement implied from a prior or existing use.
Under Georgia law, a quasi-easement arises when the owner of an entire
tract uses one part of the tract for the benefit of another and thereafter
the tract is divided so that the benefitted parcel, [the] quasi-dominant
estate, is separated from the burdened parcel, [the] quasi-servient estate.
If the quasi-dominant estate receives a benefit that is apparent,
continuous, permanent in nature, and is necessary and beneficial to the
enjoyment of the quasi-dominant estate, then an easement is implied
from the prior use. . . . [T]he concept of quasi-easement has been applied
in Georgia . . . in instances where an implied easement is necessary to
provide water or other essential services to one parcel of property after
partition of the tract by the . . . common owner.
De Castro v. Durrell, 295 Ga. App. 194, 198-199 (1) (671 SE2d 244) (2008) (citations
and punctuation omitted).
The undisputed evidence shows that before the Hunts’ transfer severing the
unity of title, they used part of the united parcel for the benefit of another part by
installing the underground utility lines across the parcel that is now Scarbrough’s to
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service the parcel that is now Phillips’s. The undisputed evidence also shows that this
use was continuous and permanent and, as detailed below, that Scarbrough had
inquiry notice of that use. See Rowland v. Woods, 259 Ga. 832, 833 (1) (388 SE2d 684)
(1990).
Phillips’s right to maintain the underground utility lines in their current
location
is not dependent upon [the express easement nor] any prescriptive title
to such easement, but passes to [her] by reason of the fact that the owner
of the entire premises[, the Hunts,] had employed the portion now
owned by [Scarbrough] so as to give to the portion now owned by
[Phillips] an apparent benefit of a continuous nature, to the reasonable
enjoyment of which the quasi-easement is necessary.
Rowland, 259 Ga. at 833 (1) (citation and punctuation omitted). “Such an easement,
being appurtenant to the dominant estate, passes with it, although the conveyance
thereof may not expressly mention the easement, or contain a general conveyance of
the appurtenances of the estate. . . .” Glore v. Haggard, 38 Ga. App. 278 (143 SE 780)
(1928) (citation omitted).
3. Notice
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Whether Scarbrough took his property subject to Phillips’s easement for the
underground utility lines depends upon whether he had actual or constructive notice
of its existence. See Rowland, 259 Ga. at 833 (1); Mathis v. Holcomb, 215 Ga. 488, 489
(1) (111 SE2d 50) (1959). Scarbrough argues that whether he had notice is a jury
question. He argues that the trial court erred in holding that, as a matter of law, the
recorded express easement referencing utility lines — without specifying their exact
location — as well as the existence of above-ground power lines, power boxes, and
Phillips’s water meter outside the boundaries of the express easement put him on at
least inquiry notice of the underground utility lines. We hold that the reference in the
recorded express easement to utility lines without specifying their location placed
Scarbrough on inquiry notice.
“For more than a century, it has been recognized that a purchaser of land in this
state is charged with notice of every fact shown by the records, and is presumed to
know every other fact which an examination suggested by the records would have
disclosed.” Deljoo v. SunTrust Mtg., 284 Ga. 438, 439 (668 SE2d 245) (2008)
(citations and punctuation omitted). It is undisputed that Scarbrough knew that
Phillips had the right to maintain utility lines on his property. It is also undisputed that
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he did not know the location of those utility lines when he purchased the property.
These facts were sufficient to charge Scarbrough with inquiry notice. “Notice
sufficient to excite attention and put a party on inquiry shall be notice of everything
to which it is 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 parties.”
OCGA § 23-1-17.
4. Remaining arguments
Given our holding that the undisputed material facts demonstrate that Phillips
has the right, arising from a quasi-easement, to maintain the underground utilities in
their current location, we do not reach Scarbrough’s remaining arguments.
Judgment affirmed. Brown and Markle, JJ., concur.
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