Davis v. Overall
| Citation | 301 Ga. App. 4,686 S.E.2d 839 |
| Decision Date | 13 November 2009 |
| Docket Number | No. A09A1088.,A09A1088. |
| Parties | DAVIS et al. v. OVERALL. |
| Court | United States Court of Appeals (Georgia) |
Alton M. Adams, Toccoa, for appellants.
Oliver & Weidner, William R. Oliver, Clarkesville, for appellee.
Lamar Davis and Howard Farmer sued Richard Overall for damages in a dispute over a family cemetery located on Overall's land. Davis and Farmer contended that Overall had interfered with the family's easement across Overall's land to and from the cemetery and had trespassed and created a continuing nuisance within the cemetery. The trial court granted Davis and Farmer's request for a permanent easement within the cemetery's boundaries and a right of ingress and egress to and from the cemetery. The court granted Overall's motion for summary judgment on Davis and Farmer's other claims, including claims of nuisance, trespass, punitive damages, declaratory judgment, injunctive relief, and attorney fees.1 After reviewing the record, we conclude that the trial court erred in granting Overall's motion for summary judgment on Davis and Farmer's claims of nuisance, trespass and declaratory judgment and we reverse on those claims.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). This Court applies a de novo standard of review to an appeal from a grant of summary judgment and we view the evidence in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459, 486 S.E.2d 684 (1997).
So viewed, the record shows that Davis, Farmer, and other heirs have continuously maintained the Davis-Busha cemetery since the burials of the six family members interred there. According to Davis, there were never any problems with accessing the cemetery until the property on which the cemetery was located was sold to Overall in 2007.
Upon learning that the land had been sold, Davis called Overall to discuss the cemetery. Overall told Davis that he knew nothing about the cemetery and also told him that he "was forbidden to come upon the property."
Davis called a lawyer who wrote Overall a letter explaining that the heirs had a right to travel across his land to get to and from the cemetery and a right to maintain the cemetery. At some point after receiving the letter, Overall put building materials and other "junk" immediately adjacent to and partially upon the cemetery.
Davis and Farmer then filed the instant suit. Two months later, Overall's attorney told Davis and Farmer that Overall had either removed or was in the process of removing the obstructions around and on the cemetery and that the heirs would be allowed to visit the cemetery. Davis and Farmer claimed, however, that there was a continuing nuisance and trespass because Overall keeps goats and large dogs which roam freely across the cemetery and which are intimidating to visitors.
1. The trial court erred in granting Overall's motion for summary judgment on Davis and Farmer's claims for nuisance and trespass.
When a family burial plot is established, it creates an easement against the fee, and while the naked legal title will pass, it passes subject to the easement created.... The easement and rights created thereunder survive until the plot is abandoned either by the person establishing the plot or his heirs, or by removal of the bodies by the person granted statutory authority.
(Punctuation omitted; emphasis in original.) Walker v. Ga. Power Co., 177 Ga.App. 493, 495, 339 S.E.2d 728 (1986). Accordingly, Davis and Farmer, as heirs of the person who established the family cemetery, "own an easement to enter, care for and maintain the burial plots, of freedom from damage or disturbance, and to use and enjoy the property." Id. at 496, 339 S.E.2d 728.
Here, Davis and Farmer have submitted evidence that Overall piled junk in and around the cemetery and also that there are goats and dogs roaming through the cemetery and interfering with their right to freely access the cemetery, to be free from damage or disturbance, and to use and enjoy the property. Overall argues that the debris has been removed, but "[o]ne who is the owner of the easement of burial in a cemetery is entitled to recover damages from any one who wrongfully interferes with such right." Phinizy v. Gardner, 159 Ga. 136, 136, 125 S.E. 195 (1924). "The law infers some damage from the invasion of a property right; and if no evidence is given of any particular amount of loss, it declares the right by awarding what it terms `nominal damages.'" Williams v. Harris, 207 Ga. 576, 579(2), 63 S.E.2d 386 (1951).
When a deprivation of use and enjoyment has occurred, a plaintiff may recover both nominal damages and whatever the jury determines "the defendant ought to pay, in view of the discomfort and annoyance to which the plaintiff and his family have been subjected by the nuisance."
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