FLOYD et al.
DILLARD, P. J., GOBEIL and HODGES, JJ.
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).
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.
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.
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. 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.
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.
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. We find no error.
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 § 44-9-1 against the party who asserts
a right of entry over the lands of another. If the prescriber
fails to show any ...