James Szalay v. Anne Albenberg

THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, 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.
http://www.gaappeals.us/rules/
June 30, 2015
In the Court of Appeals of Georgia
A15A0175, A15A0176. ALBENBERG v. SZALAY et al.; and vice
versa.
MCFADDEN, Judge.
Anne Albenberg, whose property is landlocked, filed this action against
adjoining landowners James and Karin Szalay, seeking, among other things, an
ingress-egress easement across the Szalays’ property. Both parties moved for
summary judgment. The trial court granted both motions in part and denied both
motions in part, and these appeals followed.
We find that the trial court correctly determined that Albenberg has an express
easement across the Szalays’ property, a finding with which the Szalays now agree.
But we reject Albenberg’s contention that that express easement can be varied or
expanded on the basis of an implied easement or a utilities easement. We likewise
find that the Szalays’ are entitled to summary judgment on Albenberg’s claim for a
prescriptive easement because the undisputed evidence shows that she abandoned any
prescriptive easement. Accordingly, we affirm in part and reverse in part.
1. Facts.
To prevail on a motion for summary judgment, “the moving party must show
that there exists no genuine issue of material fact, and that the undisputed facts,
viewed in the light most favorable to the nonmoving party, demand judgment as a
matter of law.” Atlantic Ins. Brokers v. Slade Hancock Agency, 287 Ga. App. 677(652 SE2d 577) (2007) (citation omitted). On appeal from the grant or denial of such
a motion, we apply a de novo standard of review. King v. GenOn Energy Holdings,
323 Ga. App. 451, 453 (2) (747 SE2d 15) (2013) (citation omitted).
The relevant facts are largely undisputed. Albenberg and the Szalays have a
common predecessor in title. In 1971, when the common predecessor in title first
conveyed the property now owned by Albenberg, the warranty deed included the
grant of a permanent easement over property retained by the common predecessor.
The warranty deed describes the easement as
a permanent easement for ingress and egress to the above described
property on and across lands of the Grantor. Said easement to be located
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along the eastern line of Grantor and running along said line until it
intersects with the Hall County road known as the Old Shallowford
Road (also known as Robinson Creek Road), said easement being
twenty feet in width. Grantor specifically grants Grantee herein the right
to grade, level, pave and make such improvements on said easement as
may be desired by Grantee, so long as improvements are solely for the
purpose of making, maintaining, repairing, modifying or replacing a
road for ingress and egress.
Albenberg has owned her property since 1974. The Szalays acquired the
property over which the easement runs in 2006.
Albenberg’s property does not abut a public right-of-way. Since the purchase
of the property, Albenberg and her family and guests have always used the same route
to access the property. That route crosses the Szalays’ property. Sometime in the
1970s or early 1980s, near the point where Albenberg’s property touches the Szalays’
property, a creek flooded and washed out the route. Automobiles could not cross the
route at that point.
Albenberg and her family used the property for recreational purposes three or
four times a year from its purchase in 1974 until July 13, 1994, when they stopped
using it at all. They hope to construct a residence on the property in the future.
According to Albenberg, the construction of a road within the easement area adequate
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to accommodate cars would require the construction of a bridge over a creek, the
installation of a culvert pipe and redirection of the creek, or other significant grading
and construction, given the topography.
Apparently Albenberg’s son went to the property in July 2012 and discovered
that the Szalays had built a fence across the route. Albenberg filed this action in May
2013, asserting that she was entitled to an easement by her deed, by prescription, by
a recorded plat of the Szalays’ property, and by implication. See OCGA § 44-9-1
(“The right of private way over another’s land may arise from an express grant, from
prescription by seven years’ uninterrupted use through improved lands or by 20 years’
use through wild lands, by implication of law when the right is necessary to the
enjoyment of lands granted by the same owner, or by compulsory purchase and sale
. . . .”) She also sought a utilities easement and trespass damages because of the
Szalays’ erection of the gate. The Szalays admitted that Albenberg has an express
easement across their property for ingress and egress.
Albenberg and the Szalays moved for summary judgment, and the trial court
entered an order in favor of Albenberg on some claims and in favor of the Szalays on
others. Specifically, the trial court granted Albenberg summary judgment on her claim
for the establishment of an easement by deed. It denied both parties’ motions for
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summary judgment on Albenberg’s claims for easement by prescription, ruling that
genuine issues of material fact remained. (The court only expressly denied
Albenberg’s motion for summary judgment on this claim, but because it found that
genuine issues of material fact remained, this amounted to a denial of the Szalays’
motion for summary judgment as well.) The trial court denied Albenberg’s motion for
summary judgment and granted the Szalays’ motion for summary judgment on
Albenberg’s claim for easement by plat, ruling that the plat upon which Albenberg
relied did “not show anything other than the location of [Albenberg’s] recorded
easement.” The trial court denied Albenberg’s motion for summary judgment and
granted the Szalays’ motion for summary judgment on Albenberg’s claim for
easement by implication, ruling that because she had an express easement, there was
no need to imply an easement. The court denied the Szalays’ motion for summary
judgment on Albenberg’s trespass claim, finding that although the claim was moot,
given the removal of the gate, the issue of Albenberg’s damages remained. It granted
the Szalays summary judgment on Albenberg’s claim for a utilities easement because
the express easement did not include such. Albenberg appealed and the Szalays cross-
appealed.
2. Express easement.
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Although the trial court granted her summary judgment on her claim for an
express easement, Albenberg argues that the trial court erred by limiting the
boundaries of her express easement to 20 feet from the Szalays’ property line because
the property is impassable in its southeast corner 20 feet from the property line and
requires construction of a bridge over the creek. We disagree.
The trial court simply granted Albenberg an express easement “as described
in the deed recorded in Deed Book 462, Page 225, Hall County Deed Records” as
Albenberg had requested in her complaint and motion for summary judgment. And
Albenberg concedes that the deed describes her easement as being 20 feet from the
Szalays’ property line. But, she argues, we must apply the principles of contract
construction to uphold the intention of the grantor of the easement, which was to
provide vehicular access to Albenberg’s property. In support of this argument, she
points to the language in the easement grant which refers to a road.
The “rules [for the construction of contracts] are irrelevant, because the [deed
is] unambiguous and do[es] not require construction.” Miller v. Slater, 182 Ga. 552,
556 (186 SE 413) (1936). Moreover, “an easement with a fixed location cannot be
substantially changed or relocated without the express or implied consent of the
owners of both the servient estate and the dominant estate, absent reservations
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contained in the instrument creating the easement.” Herren v. Pettengill, 273 Ga. 122,
123 (2) (538 SE2d 735) (2000) (citations omitted). “[W]here the parties have
established the actual location and dimensions of an easement, that determination is
the controlling factor under Georgia law.” Sloan v. Sarah Rhodes, LLC, 274 Ga. 879,
880 (560 SE2d 653) (2002). The grant here fixed the easement’s location as a 20-foot
width along the eastern line of the Szalays’ property. And the reference to a road does
not change this conclusion. The easement includes “the right to grade, level, pave and
make such improvements on said easement as may be desired by Grantee, so long as
improvements are solely for the purpose of making, maintaining, repairing, modifying
or replacing a road for ingress and egress.” By its own terms, the language refers to
the grantee’s right to create and maintain a road on the easement itself.
3. Easement by plat.
Albenberg argues that the trial court erred by denying her motion for summary
judgment and granting the Szalays’ motion on her claim that a plat established an
easement in her favor. This plat was recorded in 1975 and depicted the parcel later
acquired by the Szalays. Across the parcel are dotted lines labeled “road.” Albenberg
argues that a conveyance of the parcel from one of the Szalays’ predecessors in title
to another of their predecessors in title referred to this 1975 plat. This reference in the
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conveyance, she contends, “effectively resulted in the conveyance of a perpetual
easement” in her favor.
But the plat does not describe the road as any kind of easement benefitting
Albenberg’s property. Morever, as the trial court held, the dotted lines seem to be
simply a visual depiction of the easement described in Albenberg’s chain of title: the
lines run “along the eastern line of [the Szalays’ property] . . . until it intersects with
the Hall County road known as the Old Shallowford Road (also known as Robinson
Creek Road), . . . [and depict] twenty feet in width.” The trial court did not err by
granting summary judgment to the Szalays on this claim.
4. Easement by implication.
Albenberg argues that the trial court erred in granting the Szalays summary
judgment on her claim for easement by implication. “An implied easement may arise
when the right is necessary to the enjoyment of lands granted by the same owner.”
Eardley v. McGreevy, 279 Ga. 562, 563 (1) (615 SE2d 744) (2005) (citation and
punctuation omitted). However, “grants by implication are not favored.” Dept. of
Transp. v. Meadow Trace, 280 Ga. 720, 721 (631 SE2d 359) (2006). And “[b]efore
one can assert a way of necessity over the land of another, every essential requisite
to such a right must affirmatively appear. Not only the necessity of ingress to and
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egress from his own land must exist, but it must further be alleged that there is no
other suitable outlet.” Hasty v. Wilson, 223 Ga. 739, 748 (4) (158 SE2d 915) (1967)
(citation and punctuation omitted). Here, Albenberg has an express easement. And
she has not come forward with evidence that she cannot use her express easement to
access the public roadway “without unreasonable difficulty.” Eardley, 279 Ga. at 563(1).
She asserts that the construction of a passable road within the easement area
would require the construction of a bridge over a creek, the installation of a culvert
pipe and redirection of the creek, or other significant grading and construction, given
the topography. But she has pointed to no evidence of the costs of such an
undertaking. Accordingly, she has not supported her claim that she is entitled to an
implied easement of necessity, which “never exists where a [person] can get to [her]
own property through [her] own land, however inconvenient the way to [her] own
land may be. Particularly is this true where the record does not show the character of
the obstruction, its nearness to the highway, the additional cost of construction, and
its relation to the value of the tract.” Gaines v. Lunsford, 120 Ga. 370, 372-373 (47
SE 967) (1904) (citation omitted). Although a property could have an “obstruction
of a character that makes it not absolutely impossible to reach” a public road, but
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whose “expense [to do so] would be so out of proportion to the value of the estate as
to warrant laying out a way of necessity, . . . [n]othing of that sort appears here.” Id.Because Albenberg did not present evidence sufficient to establish a genuine issue
of fact on the issue of the necessity of an implied easement, an essential element of
this claim, the trial court did not err by granting summary judgment to the Szalays on
this claim.
5. Easement by prescription.
The Szalays argue that the trial court erred by denying their motion for
summary judgment on Albenberg’s claim for an easement by prescription. The facts
raise and the parties address certain issues arising out of the interplay between the law
of easements by deed and the law of easements by prescription. But we do not reach
those issues. Instead we agree with the Szalays and find, as a matter of law, that any
easement by prescription has been abandoned.
“An easement may be lost by abandonment or forfeited by nonuse if the
abandonment or nonuse continues for a term sufficient to raise the presumption of
release or abandonment.” OCGA § 44-9-6. The term of nonuse sufficient to raise such
a presumption “generally follows the prescriptive period.” Forehand v. Carter, 270
Ga. 534, 536 (3) (512 SE2d 611) (1999) (citations omitted). See Pindar, Ga. Real Est.
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Law, §§ 8-29, 8-31 (7th ed.). The prescriptive period is “seven years’ uninterrupted
use through improved lands [and] 20 years’ use through wild lands.” OCGA § 44-9-1.
The undisputed evidence is that the Szalays’ tract has had a house on it since
1975. The tract, therefore, has not been wild at least since then. Hopkins v. Roach,
127 Ga. 153, 154 (56 SE 303) (1906); Henderson v. Cam Dev. Co., 190 Ga. App.
199, 200 (378 SE2d 495) (1989). The applicable prescriptive period is thus seven
years. Albenberg’s own evidence is that she and her family had not used the Szalays’
tract to access her property at all from July 13, 1994. Thus the undisputed evidence
shows that Albenberg had not used the property for a period of time well beyond the
period that would generally raise a presumption of abandonment. See Forehand, 270
Ga. at 536 (3). And she has pointed to nothing to show that the presumption of
abandonment should be rebutted. Accordingly, the Szalays are entitled to summary
judgment on this claim.
6. Utilities easement.
Albenberg argues that the trial court erred by granting summary judgment to
the Szalays on her claim for a utility easement. We disagree. An easement for ingress
and egress, which is the kind of easement granted to Albenberg, does not include a
utility easement. Lanier v. Burnette, 245 Ga. App. 566, 569-570 (2) (538 SE2d 476)
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(2000). Albenberg is not entitled to an implied easement by necessity for utilities;
“[s]ince utility companies have the power of eminent domain, then the utility can
acquire all necessary easements through the exercise of such power.” Id. (citation
omitted).
Judgments affirmed in part and reversed in part. Ellington, P. J., and Dillard,
J., concur.
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