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Floyd v. Chapman

Court of Appeals of Georgia, Third Division

January 16, 2020

FLOYD et al.

          DILLARD, P. J., GOBEIL and HODGES, JJ.

          Hodges, Judge.

         This dispute concerns a gravel driveway which connects a house constructed by appellants Marshall Floyd, Jr. and Kathleen Floyd (the "Floyds") to a roadway by crossing over land currently owned by appellee James T. Chapman. Both the Floyds and Chapman acquired their respective land from Marshall Floyd, Jr.'s stepmother, Patricia Densmore Floyd ("Patricia"). The Floyds petitioned the Superior Court of Dawson County to recognize that they had acquired a private right of way over Chapman's land. Chapman answered and filed a counterclaim, seeking to find the Floyds liable for trespass and to issue an injunction to prevent the Floyds' use of the driveway. The trial court conducted a bench trial and found that the Floyds had not established a private right of way across Chapman's property; thus, it found the Floyds had trespassed upon Chapman's property and granted Chapman the injunction he requested. Additionally, the trial court ordered the Floyds to remove an access gate installed on the driveway as well as underground utility lines they had installed along the length of the driveway. The Floyds appeal from this order, and for the reasons that follow, we affirm in part and reverse in part.

Under Georgia law,
[t]he [trial] court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them. The plain legal error standard of review applies where the appellate court determines that the issue was of law, not fact.

(Citation and punctuation omitted.) Savannah Jaycees Foundation v. Gottlieb, 273 Ga.App. 374, 375-376 (1) (615 S.E.2d 226) (2005).

         So viewed, the record demonstrates that on May 25, 2006, Patricia gifted the Floyds a 15-acre tract of land in Dawson County from a larger parcel she owned. The Floyds built a house on their land, which previously had no structure built on it. The Floyds' parcel has road frontage, but rather than construct a new path to connect their home to the road, the Floyds utilized an old logging road which ran across their property as well as the property retained by Patricia. The Floyds hauled gravel to the property to improve the driveway and installed an access gate on the driveway. The Floyds requested that Patricia grant an easement to the utility company for the installation of underground lines to the Floyds' home, and Patricia agreed. The Floyds, however never asked Patricia's permission to utilize her land for their driveway, nor did they ever tell her they believed they had a legal right to utilize her land. According to the Floyds, they did not seek Patricia's permission to use and improve the logging road as their driveway because they assumed that Patricia would grant them the remainder of her land at some point in the future. Patricia never conveyed to the Floyds an easement for the driveway across her land, but she also never told them that they could not use her land for the driveway. Patricia visited the Floyds at their home and was aware of the existence of the driveway, but she assumed it was contained entirely on the Floyds' property.

         In 2014, Patricia informed the Floyds that she intended to sell the remainder of the parcel from which the Floyds' tract was taken. At that time, Marshall Floyd, Jr. informed Patricia that the Floyds' driveway crossed her property and asked her for an easement. This was the first time that Patricia realized the driveway encroached on her property, and she never responded to the request for an easement.

         On February 24, 2017, Patricia conveyed the remainder of her parcel to Chapman via a limited warranty deed which provided that it was subject to all easements for roads and utilities in use or of record. Chapman testified that he is in the timber business and he intends to use the driveway for logging his property. Although the parties attempted to work out an agreement for use of the driveway, they were unable to do so due to Chapman's intended use of his property, and the Floyds filed suit asking the trial court to recognize that they obtained a private right of way over Chapman's property pursuant to OCGA § 44-9-1.[1] Chapman counterclaimed for trespass and for an injunction to prevent the Floyds from using the driveway on his property for travel or the underground utility lines.

         The trial court conducted a bench trial at which Patricia, Marshall Floyd, Jr., and Chapman testified. After hearing the testimony and reviewing the exhibits submitted by the parties, the trial court found that the Floyds had not established a prescriptive right of way. Specifically, the trial court made findings concerning the historical use of the land, and determined that Chapman's property constituted wild, as opposed to improved, land. Consequently, the trial court concluded that, to establish a prescriptive easement, the Floyds' use of the gravel driveway would have needed to meet the requirements of OCGA § 44-9-1 for a period of 20 years. As a result, the trial court denied the Floyds all of the relief they sought, found them to have trespassed on Chapman's land, and issued a temporary and permanent injunction preventing the Floyds from accessing the portion of the driveway located on Chapman's land. The trial court also ordered the Floyds to remove both the access gate they installed on the driveway, as well as the underground utility lines running along the driveway. The Floyds now appeal.

         1. In two related enumerations of error, the Floyds contend that the trial court erred in finding that Chapman's property was wild land and erred in failing to recognize the gravel driveway as an easement in use or of record at the time Chapman purchased his property.[2] We find no error.

         Georgia law recognizes the ability to obtain a private way over the land of another "from prescription by seven years' uninterrupted use through improved lands or by 20 years' use through wild lands[.]" OCGA § 44-9-1. "The burden of establishing prescriptive title lies on the plaintiff." Murray v. Stone, 283 Ga. 6 (1) (655 S.E.2d 821) (2008). In order to establish the existence of a private way over Chapman's land, the Floyds were required to show (1) that they, or a predecessor in title, had been in uninterrupted use of the alleged private way for the period of time required by OCGA § 44-9-1; (2) that the private way is no more than twenty feet wide, and that it is the same twenty feet originally appropriated; and (3) that they have kept the private way in repair during the period of uninterrupted use. See Norton v. Holcomb, 285 Ga.App. 78, 81 (2) (646 S.E.2d 94) (2007). Moreover, "[a] claim of prescriptive title requires proof that the possession did not originate in fraud and was (1) public; (2) continuous; (3) exclusive; (4) uninterrupted; (5) peaceable; and (6) accompanied by a claim of right. The use must also be adverse rather than permissive." (Citations and punctuation omitted.) Id. at 80-81 (2). However,

[t]o allow a person to acquire prescriptive rights over the lands of another is a harsh result for the burdened landowner. Thus, Georgia courts have strictly construed the elements of OCGA ยง 44-9-1 against the party who asserts a right of entry over the lands of another. If the prescriber fails to show any ...

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