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Houston v. Flory

Court of Appeals of Georgia

November 20, 2014

HOUSTON et al.
v.
FLORY et al

Easement. Rabun Superior Court. Before Judge Caudell.

Judgment affirmed.

Mitchell L. Baker, Jr., for appellants.

Jones Law, Bonnie L. Jones, for appellees.

BRANCH, Judge. Barnes, P. J., and Boggs, J., concur.

OPINION

Page 228

Branch, Judge.

In 1998, a father divided approximately ten acres of land into two parcels and conveyed one each to his son, Earnest Smith, and daughter, Rebecka Flory. The two conveyances included mutual [329 Ga.App. 883] easements over three gravel drives located on the properties, two of which were clearly marked on plats referenced in each deed; the deeds provided only a description of the third gravel drive. Years later, after Michael and Kylie Houston acquired the son's parcel in a foreclosure sale, a dispute arose as to the location and enforceability of the third easement. Smith and Flory therefore filed suit seeking a declaration of their rights. Upon cross-motions for summary judgment by the Houstons and Smith, the trial court ruled in favor of Smith

Page 229

and Flory; [1] the Houstons appeal. For the reasons that follow, we affirm.

On appeal from the grant of summary judgment, appellate courts " conduct[ ] a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." Shekhawat v. Jones, 293 Ga. 468, 469 (746 S.E.2d 89) (2013) (citation and punctuation omitted); Ga. Dept. of Corrections v. Developers Sur. & Indem. Co., 324 Ga.App. 371, 372 (750 S.E.2d 697) (2013).

Construed in favor of the Houstons, the record shows that on October 23, 1998, James Earl Smith divided his 10.2 acre tract of land by conveying a 7.64 acre tract to Smith[2] (" Tract 2" ); the conveyed tract's northern boundary is both the boundary line with the remaining parcel (" Tract 1" ) and a land lot line separating Land Lots 7 on the north, and 8 on the south, of the 5th Land District in Rabun County. The Smith deed references a survey plat dated August 31, 1996. The plat shows the 7.64 acre tract (a/k/a " Tract 2" ) as a roughly square parcel below the land lot line immediately south of a rectangular portion of the smaller tract (a/k/a " Tract 1" ); on the western end of the rectangular part of Tract 1 is an additional triangular-shaped area of Tract 1 through whose northernmost tip a gravel road enters the property with the same road also providing access to Tract 1 at its western end. The deed to Smith describes this gravel " road" as Gipson Road, a county road, and describes the three gravel " drives" as follows:

Also, as shown on said plat, two (2) gravel drives extend in a Southerly direction from said gravel road and into that [329 Ga.App. 884] portion of said 10.20 acre tract of land that lies in Land Lot 8 of the Fifth land District of Rabun County, Georgia. Also there is a gravel drive that is not depicted on said plat that extends in an Easterly direction along the land lot line from the Easternmost gravel drive that is ...

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