905 Bernina Ave. Coop., Inc. v. Smith/Burns LLC

• Decision Date: 27 June 2017
• Docket Number: A17A0062,A17A0063
• Parties: 905 BERNINA AVENUE COOPERATIVE, INC. et al. v. SMITH/BURNS LLC et al.; and vice versa.
• Court: Georgia Court of Appeals

342 Ga.App. 358

802 S.E.2d 373

905 BERNINA AVENUE COOPERATIVE, INC. et al.

v.SMITH/BURNS LLC et al.; and vice versa.

A17A0062

A17A0063

Court of Appeals of Georgia.

June 27, 2017

John Gilbert Nelson, Atlanta, for Appellant in A17A0062.

W. Henry Parkman, for Appellee in A17A0062.

W. Henry Parkman, for Appellant in A17A0063.

John Gilbert Nelson, Atlanta, for Appellee in A17A0063.

McFadden, Presiding Judge.

This is a dispute between neighbors over the actual location of their common boundary line and the existence of easements in a disused railroad spur track and an alley. The spur track is on the boundary line between the two properties. The alley runs alongside both properties and provides access from a public street to the spur track. The parties to the litigation are plaintiffs Smith/Burns LLC, which owns property located at 331 Elizabeth Street, and its members, Gerald R. Burns and David P. Smith (collectively, "the plaintiffs"); and defendants 905 Bernina Avenue Cooperative, Inc. ("the Co-op"), which owns property located at 905 Bernina Avenue, and Thomas and Janet Berry, who are officers and shareholders of the Co-op and lease a residential unit in the 905 Bernina building (collectively, "the defendants").

The dispute, in a nutshell, is as follows. Years ago, a common owner developed the parties' properties as part of a group of warehouses with attached platforms backing up to a railroad spur track. Today, the spur track is filled in with concrete and level with the platforms. The buildings at 905 Bernina and 331 Elizabeth sit across the spur track from each other. The spur track is on the 905 Bernina property. An alley runs next to both properties, providing access to the filled-in spur track.

The parties' dispute arose when the defendants installed a fence on the spur track and on a portion of the platform attached to the building at 331 Elizabeth. Once the dispute over the fence arose, the plaintiffs also objected to obstructions the defendants had built in the portion of the alley adjacent to 905 Bernina. The multiple pleadings in this case set forth the following claims. The plaintiffs seek a declaration that plaintiff Smith/Burns owns the platform attached to its building at 331 Elizabeth; a declaration that plaintiff Smith/Burns has an express or prescriptive easement over the spur track; an injunction requiring the defendants to remove the fence; a declaration that plaintiff Smith/Burns has an easement to use the entire alley adjacent to both properties; an injunction requiring the defendants to remove the obstructions in the alley; and damages for trespass and interference with property rights. The defendants argue that the boundary line between 905 Bernina and 331 Elizabeth extends to the wall of the building at 331 Elizabeth, making the platform attached to the building at 331 Elizabeth part of the defendant Co-op's property. They seek a declaration that "no one other than the [defendant] Co-[o]p and its shareholders has any easement or ownership right in the Co-[o]p's [p]roperty nor any other right to use the Co-[o]p's [p]roperty."

The parties filed cross motions for partial summary judgment on the issues regarding their rights in the platform, the spur track, and the alley. (The motions for partial summary judgment did not address the plaintiffs' entitlement to damages for trespass, and that issue remains pending below.) The trial court appointed a special master to consider the motions, and the special master issued a report recommending that the trial court:

(1) declare that plaintiff Smith/Burns has fee simple title in the land on which the platform attached to the building at 331 Elizabeth sits;

(2) declare that an express, nonexclusive easement in the spur track exists for the benefit of the property at 331 Elizabeth and its owners, the plaintiffs;(3) declare that the defendants' property line "extends out and up to the edge of" the platform attached to the building at 331 Elizabeth, but is subject to the plaintiffs' easement rights in the spur track; and

(4) declare that the plaintiffs do not have an express easement in the alley.

The special master also recommended that the trial court order:

(1) the defendants to remove all structures located on the platform attached to the building at 331 Elizabeth and those structures that block the spur track area;

(2) the parties to secure a survey of the land to illustrate the above declarations;

(3) the clerk of the superior court to record in the public deed records the special master's report, the trial court's final order, and the above-described survey; and

(4) the parties to pay special master's fees and costs in compliance with the order appointing the special master.

The special master attached to her report a demonstrative sketch of the properties, which is shown here for demonstrative purposes only.

Over objections from both sets of parties, the trial court adopted the special master's report. Although the trial court did not expressly state that he was ruling on the motions for partial summary judgment, his ruling had the effect of granting partial summary judgment to the plaintiffs as to the platform and spur track and granting partial summary judgment to the defendants as to the alley. See Quarles v. Quarles , 285 Ga. 762, 683 S.E.2d 583 (2009). Both sets of parties appealed to the Supreme Court of Georgia, which transferred the appeals to this court because the appeals "arise from a suit over a disputed boundary line and easement rights."

As detailed below, we find that, as a matter of law, the plaintiffs were entitled to a declaration that plaintiff Smith/Burns had fee simple title to the platform attached to the building at 331 Elizabeth and to declarations that the plaintiffs/owners of 331 Elizabeth had an express easement in both the spur track and the alley. In other words, the plaintiffs were entitled to partial summary judgment on the platform, spur track, and alley issues. So we affirm that part of the trial court's order adopting the special master's recommended declarations regarding the platform and spur track and requiring the defendants to remove structures obstructing the platform and spur track, but we reverse that part of the trial court's order adopting the special master's recommended declarations regarding the alley. Given this disposition, we vacate that part of the trial court's order adopting the special master's remaining recommendations and remand the case for further proceedings consistent with this opinion.

Finally, we do not address the plaintiffs' claim on appeal that the trial court erred in dismissing an earlier version of the plaintiffs' trespass claim, because the plaintiffs subsequently amended their complaint to reassert a claim for trespass, and that claim remains pending below.

1. Facts .

Even though this case involves recommendations by a special master, because the parties made the decision to move for partial summary judgment, the standards governing motions for summary judgment and their review on appeal apply. Boyd v. JohnGalt Holdings, LLC , 294 Ga. 640, 644 (4) n. 6, 755 S.E.2d 675 (2014). "[T]o prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to a judgment as a matter of law." Cowart v. Widener , 287 Ga. 622, 623 (1) (a), 697 S.E.2d 779 (2010) (citations and punctuation omitted). When a plaintiff moves for summary judgment, he "has the burden of establishing the absence or non-existence of any defense raised by the defendant." Vance v. FD 2011-C1 Grove Rd. , 340 Ga.App. 36, 795 S.E.2d 747 (2016) (citation and punctuation omitted). When a defendant moves for summary judgment, he has the burden of "either presenting evidence negating an essential element of the plaintiff's claims or establishing from the record an absence of evidence to support such claims." Cowart , supra at 623 (1) (a), 697 S.E.2d 779 (citation and punctuation omitted). "We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Because this opinion addresses cross-motions for summary judgment, we will construe the facts in favor of the nonmoving party as appropriate." Maree v. ROMAR Joint Venture , 329 Ga.App. 282, 283, 763 S.E.2d 899 (2014) (citation omitted).

So viewed, evidence shows that the properties at issue—331 Elizabeth and 905 Bernina—descend from a parcel of land described, on a plat recorded in 1915, as the Copenhill Land Company property. 331 Elizabeth is comprised of portions of Lots 4 and 5 of Copenhill. 905 Bernina is also comprised of portions of Lots 4 and 5, along with portions of Lots 8 and 9 and the entirety of Lot 10 of Copenhill. The contested alley runs along both 331 Elizabeth and 905 Bernina and was depicted on the 1915 Copenhill plat.

(a) Agreements and conveyances prior to divergence of title of 331 Elizabeth and 905 Bernina.

In 1926, S. J. Pattillo¹ acquired Lots 4 through 10 of Copenhill. Two years earlier, Pattillo had entered into an agreement with the owner of a neighboring parcel, Milton Klein, to build a railroad spur track that would run through Klein's property and the property that Pattillo later acquired and link with a nearby railroad line. (This agreement states, apparently erroneously, that Pattillo already owned the property. The parties did not file this agreement until 1927, after Pattillo had acquired the property.) Klein and Pattillo's agreement, the "Track Agreement," gave Pattillo the right to use the portion of the spur track on Klein's property and gave Klein the right to use the portion of the spur track on the property Pattillo later acquired, "as long as the said track, or any part of it, is maintained." The Track Agreement was subsequently superseded by a July 18, 1928 agreement that concerned realigning the spur track within the lots.

On November 9, 1927, Pattillo conveyed Lots 4 through 7 of Copenhill to Enterprise...