Certiorari to the Court of Appeals of Georgia -- 326 Ga.App. 840.
R. Jerry McLeod, pro se.
The Sullivan Firm, Stephen R. Sullivan, Bree O. Sullivan, for appellee.
NAHMIAS, Justice. All the Justices concur.
We granted certiorari in this case to consider the following two questions:
(1) Did the Court of Appeals err in " declin[ing] to follow Wardlaw v. Southern R. Co., 199 Ga. 97, 98 (1) (33 S.E.2d 304) (1945), for its statement that covenants running with the land bind subsequent owners thereof 'with
or without notice' " ? McLeod v. Clements, 326 Ga.App. 840, 844 (755 S.E.2d 346) (2014). See Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI.
(2) Was Wardlaw wrongly decided?
We conclude that the answer to both questions is no. The statement from Wardlaw that the Court of Appeals declined to follow was dicta that does not govern this case, and Wardlaw was correctly decided based on the facts presented in that case. We therefore affirm the judgment of the Court of Appeals.
1. The appeal in this case followed the trial court's grant of partial summary judgment to Appellee Stan Clements, so we view the evidence in the light most favorable to the non-moving party, Appellant R. Jerry McLeod. So viewed, the record shows that H.E. McLeod, Sr. transferred a part of his land to H.E. McLeod, Jr. The parties agreed that McLeod, Jr. would dig a well on his land and give McLeod, Sr. and others living on McLeod, Sr.'s land (specifically Mrs. McLeod, Sr., Michael McLeod, and Appellant) water from that well free of charge. This agreement was put in writing in 1971 in an indenture that provided:
[H.E. McLeod, Jr.], in consideration of the love and affection that he bears for [Mr. and Mrs. McLeod, Sr., Michael McLeod, and Appellant], does hereby give and grant unto [them] the right to maintain a water line at its present [297 Ga. 372] location from the well on the lands of [McLeod, Jr.] to the edge of the property of [McLeod, Jr.] and to use water from said well free from all charges. This right shall first be in Mr. and Mrs. H.E. McLeod, Sr. jointly for and during their joint lives and then to the survivor of them as long as they live on the property now occupied by Mr. and Mrs. H.E. McLeod, Sr. as a home.
Appellant and Mrs. McLeod, Sr. continued to live on the land benefited by the 1971 water agreement. The pipes and water line connection have been visible at the well site and marked by a post since 1971. In 1992, McLeod, Jr. deeded the well property to Michael McLeod. Michael and Sally McLeod then sold the well property to Ryan and Melissa Reeves on August 28, 1996. The Reeveses' deed, which was recorded on September 27, 1996, included a " Special Agreement" in which the Reeveses agreed to provide water to the house occupied by Appellant and Mrs. McLeod, Sr. as long as Appellant and Mrs. McLeod, Sr. occupied the benefited property and paid the Reeveses a reasonable monthly fee for electricity and well maintenance costs. No mention was made of the 1971 agreement.
Some time later in 1996, Appellant recorded the 1971 agreement. The well property then changed hands a few more times before it was sold to Appellee in 2007. Appellee's deed says that the property is " conveyed subject to that certain Special Agreement contained in a deed from Michael R. McLeod and Sally J. McLeod to Ryan Reeves and Melissa Reeves." In his affidavit, Appellee avers that he was not aware of the 1971 water agreement when he purchased the property, but he was aware of the 1996 agreement that required him to ...