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Land USA, LLC v. Georgia Power Co.

Supreme Court of Georgia

June 1, 2015

LAND USA, LLC
v.
GEORGIA POWER COMPANY

Page 237

Title to land. Fulton Superior Court. Before Judge Campbell.

Judgment affirmed in part and reversed in part, and case remanded.

Ayoub & Mansour, John A. B. Ayoub, Carolina D. Bryant, for appellant.

Troutman Sanders, Douglas A. Henderson, Benjamin W. Cheesbro, for appellee.

THOMPSON, Chief Justice. All the Justices concur.

OPINION

Page 238

Thompson, Chief Justice.

Appellant Land USA, LLC (" Land USA" ) filed suit against Georgia Power Company (" Georgia Power" ) for quiet title, trespass, and ejectment, challenging the validity of an easement Georgia Power claimed on property owned by Land USA in Fulton County, Georgia. Finding that Georgia Power had a valid easement, the Fulton County Superior Court granted Georgia Power's motion for summary judgment on all counts. Land USA filed a timely appeal to this Court. For the reasons discussed below, we affirm the order of the [297 Ga. 238] trial court in part and reverse and remand to the trial court in part for further action consistent with this opinion.

The underlying facts are not in dispute. In 2009, the Georgia Department of Transportation (" GDOT" ) began a road-widening project which required Georgia Power to update and relocate an electrical transmission line Georgia Power had maintained along Donald Lee Hollowell Parkway since the 1960s. Seeking to clarify its rights with respect to maintaining the electric line, Georgia Power sought an easement from L. J. Fuller, the owner of a piece of property (the " Property" ) abutting the parkway.[1] Among other things, Georgia Power sought to explicitly prohibit Fuller and any future owner of the Property from building structures within 25 feet of the electrical line's center. Fuller, however, was behind on his property taxes and, on March 3, 2009, the Fulton County Sheriff sold the Property at a tax sale to Investga.com, LLC (" Investga" ). On April 22, 2009, Investga recorded a tax deed on the Property. Although aware of the tax sale, Georgia Power continued to negotiate the easement with Fuller.

After negotiations between Georgia Power and Fuller stalled, Georgia Power filed a condemnation action against the Property on July 14, 2009, but dismissed the action without prejudice two months later when Fuller granted it the requested easement in exchange for $24,000.[2] Upon completion of the GDOT road-widening project in January 2010, Georgia Power's electrical line was re-energized and put back into service.

On March 3, 2010, Investga properly served notices of foreclosure of the right to redeem the Property to all interested parties, including Georgia Power. Interested parties had until June 10, 2012 to redeem the Property, but none did. Thereafter, Investga sold the Property to Land USA and, on December 6, 2013, Land USA filed the instant action challenging the validity of the easement Georgia Power had obtained from Fuller and sought to maintain over the Property. Land USA moved for partial summary judgment and Georgia Power filed a cross-motion seeking summary judgment on all of Land USA's claims. Granting summary judgment to Georgia Power, the trial court found Fuller not only had the ability to convey an easement to Georgia Power following the tax sale of the Property, but that the post-tax sale easement obtained by Georgia Power was [297 Ga. 239] not extinguished when the redemption period for the Property closed without the Property being redeemed. The

Page 239

trial court further determined that Land USA's claims for ejectment and trespass failed as a matter of law because the electric line was within the public GDOT right-of-way and did not materially encumber the Property,[3] the electric line was a necessary and constituent part of Georgia Power's service to the public[4] and, as Land USA was neither the true owner of the Property nor in possession at the ...


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