Daniel v. Georgia Power Co., 55536

• Decision Date: 10 July 1978
• Docket Number: No. 55536,55536
• Citation: 146 Ga.App. 596,247 S.E.2d 139
• Parties: DANIEL et al. v. GEORGIA POWER COMPANY.
• Court: Georgia Court of Appeals

Page 139

247 S.E.2d 139

146 Ga.App. 596

DANIEL et al. v. GEORGIA POWER COMPANY.

No. 55536.

Court of Appeals of Georgia.

Argued Feb. 28, 1978.

Decided June 20, 1978.

Rehearing Denied July 10, 1978.

George W. Hart, Atlanta, Hugh Lawson, J. Johnson Hall, Hawkinsville, Michael G. Frick, Atlanta, for appellants.

Smith, Smith & Frost, R. Wilson Smith, Jr., John H. Smith, Gainesville, for appellee.

SHULMAN, Judge.

Plaintiffs' son fell to his death while hiking on certain property in Tallulah Gorge Park. Plaintiffs brought suit against Moss Properties, Inc., as operator of the nature trail which was located on the property, and Georgia Power Company, as record title owner of the property, to recover damages attributable to their son's death. This appeal follows the grant of summary judgment in favor of Georgia Power. For the following reasons, we affirm the judgment.

1. The uncontradicted affidavits submitted on motion for summary judgment conclusively establish that no landlord-tenant relationship existed between Moss Properties and Georgia Power. Therefore, Code Ann. § 61-112 concerning the liability of a landlord to third persons is not applicable. See McKenna v. Jordan, 123 Ga.App. 801(1), 182 S.E.2d 550.

2. Plaintiffs' right of recovery, if any, as established by the pleadings and evidence, is predicated on plaintiffs' ability to establish that a duty was owed by Georgia Power by reason of its being an "owner or occupier" of the property within the meaning of Code Ann. § 105-401 which provides:

"Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe."

The liability of Georgia Power, if any, is dependent on whether Georgia Power had any duty which might arise from " 'control of the property (or) . . . title thereto . . . (or) a superior right to possession of property which is in the possession or control of another.' (Cit.)" Scheer v. Cliatt, 133 Ga.App. 702(2a), 212 S.E.2d 29.

A. Affidavits conclusively establish that Georgia Power did not actually control or operate the nature trail and property on which the fatality occurred. Georgia Power's activities relating to the property are limited to those concerning electrical generation and do not affect the nature trail. Exclusive actual control and operation of the nature trail was exercised by Moss Properties, Inc. Compare Guthrie v. Monumental Properties, 141 Ga.App. 21, 232 S.E.2d 369. Plaintiffs have failed to establish the breach of any duty owed by Georgia Power attributable to its occupation, actual control of or operations on the property. Compare Ga. Power Co. v. Leonard, 187 Ga. 608, 1 S.E.2d 579 and Central of Ga. R. Co. v. Lawley, 33 Ga.App. 375(2), 126 S.E. 273. Summary judgment as to this issue was proper. See Chastain v. Atlanta Gas Light Co., 122 Ga.App. 90 (4f, g), 176 S.E.2d 487; Haber v. Ga. Power Co., 127 Ga.App. 19, 192 S.E.2d 436.

B. While legal conclusions as to ownership contained in the affidavits will not support the grant of summary judgment (Smith v. Gibbs, 145 Ga.App. 647, 244 S.E.2d 615), the warranty deed to the property in question is properly before us. See Green v. Wright, 225 Ga. 25(1), 165 S.E.2d 843.

The legal rights and interests conveyed by the document will determine whether Georgia Power is an owner of the property and therefore potentially subject to liability under Code Ann. § 105-401.

3. The fact that a decision in the instant case will require construction of a deed will not deprive this court of jurisdiction where jurisdiction is otherwise proper. Kinnon v. Mercer, 222 Ga. 309, 149 S.E.2d 685. See generally Barton v. Gammell, 238 Ga. 643, 235 S.E.2d 18. Based on this authority, we therefore consider the issue of ownership of the realty on which the injury allegedly occurred.

4. The deed under which Georgia Power, as successor in interest to the grantee, claims an easement and not title in fee simple is in all respects and form a warranty deed. For the substantial sum of $100,000, the deed dated November 2, 1909, purports to convey the property absolutely and in fee to the grantee subject to certain express reservations. The express reservations in the grantor included use of then existing structures on the property and use of the land not necessary for the grantee's purposes, with the right to rebuild, remove, remodel, repair and improve structures; the right to use, occupy and enjoy the same; and to lease, rent, sell, convey or transfer any and all rights so long as such acts are not inconsistent with or do not interfere with the power company's rights to use the property for certain activities associated with electrical generation. These reservations created an interest in the nature of a defeasible easement. See Featherston Mining Co. v. Young, 118 Ga. 564(3), 45 S.E. 414; O'Barr v. Duncan, 187 Ga. 642(4), 2 S.E.2d 82.

The evidence in support of the motion for summary judgment on behalf of Georgia Power and Moss Properties conclusively establishes that the grantor and its successors in interest, i. e., Moss Properties, have remained in possession of the lands, undisturbed by the grantee for more than 35 years. The possession, however, was not shown to be inconsistent with ownership by Georgia Power.

That Georgia Power did not choose to exercise certain rights of ownership under this deed will not defeat its title. See Woods v. Flanders, 180 Ga. 835(1), 181 S.E. 83.

Georgia Power's predecessor in interest had substantial rights in the property, including the right to remove or relocate buildings of the occupant when necessary for the development and use of the property for purposes associated with electrical generation.

"What is the test by which we determine whether a deed creates an easement in, or conveys title to, land? The crucial test is the intention of the parties. In arriving at this intention we must look to the whole deed, and not merely upon disjointed parts of it. The recitals in the deed, the contract, the subject-matter, the object, purpose, and the nature of restrictions or limitations, and the attendant facts and circumstances of the parties at the time of making the deed are to be considered. (Cits.) The consideration of the deed under consideration was the substantial sum of ($100,000). In this respect it differs from conveyances to railroad companies of rights of way based upon nominal considerations . . . It is true that the warranty clause in this...