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Albenberg v. Szalay

Court of Appeals of Georgia

June 30, 2015

ALBENBERG
v.
SZALAY et al.; and vice versa

Page 731

Easement. Hall Superior Court. Before Judge Burroughs, pro hac vice.

Coleman, Chambers & Rogers, J. Cale Rogers, for appellant.

Stewart, Melvin & Frost, Rustin L. Smith, Nancy L. Richardson, for appellees.

MCFADDEN, Judge. Ellington, P. J., and Dillard, J., concur.

OPINION

Page 732

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 S.E.2d 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 S.E.2d 15) (2013).

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 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 [332 Ga.App. 666] 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 ...


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