Department of Transp. v. Knight

• Decision Date: 06 January 1977
• Docket Number: Nos. 31633,31634,s. 31633
• Citation: 232 S.E.2d 72,238 Ga. 225
• Parties: DEPARTMENT OF TRANSPORTATION et al. v. G. J. KNIGHT et al. G. J. KNIGHT et al. v. DEPARTMENT OF TRANSPORTATION et al.
• Court: Georgia Supreme Court

Page 72

232 S.E.2d 72

238 Ga. 225

DEPARTMENT OF TRANSPORTATION et al. v. G. J. KNIGHT et al.

G. J. KNIGHT et al. v. DEPARTMENT OF TRANSPORTATION et al.

Nos. 31633, 31634.

Supreme Court of Georgia.

Jan. 6, 1977.

Rehearing Denied Jan. 27, 1977.

Arthur K. Bolton, Atty, Gen., Richard L. Chambers, Deputy Atty. Gen., Marion O. Gordon, Staff Asst. Atty. Gen., Bruce M. Edenfield, asst. Atty. Gen., Atlanta, for appellants.

Parker, Groover, Pye & Poss, Durwood T. Pye, Atlanta, Patrick, Sidener, Bryant & Hammer, Griffin Patrick, Jr., East Point, Henry R. Bauer, Jr., Atlanta, for appellees.

HALL, Justice.

The single substantive issue for decision on this interlocutory appeal is quite similar to the issue we recently decided in Sadtler v. City of Atlanta, 236 Ga, 396, 223 S.E.2d 819 (1976). We must decide here whether the Department of Transportation as the successor to the State Highway Department owns certain land purchased by that department for Georgia Interstate Highway I-485 in fee simple, or whether because it has now been determined that I-485 will not be built, title to the land has reverted to the former owners. Thus, the only distinction between Sadtler and this case is that here the land was acquired by deed; in Sadtler land for the same project was acquired by condemnation.

We conclude that the Department of Transportation has fee simple title to this land.

The facts surrounding the conveyance of this land for the I-485 right of way are similar to those set out in Sadtler, except that the Knights' land lay south of Ponce de Leon and has not subsequently been declared to be surplus property. Following the abandonment of the limited access road project, this lawsuit in 11 counts was brought by the Knights against Department to regain their land and collect damages. Department filed a motion to dismiss as to each count. The only counts to be considered here are 8 and 10, which the trial court refused to dismiss-all other counts were dismissed or withdrawn. Department sought and was granted an interlocutory appeal as to these counts only. Because the court accepted and considered affidavits filed by both parties, the issues are before us in the stance of denials of Department's motions for summary judgment on these claims. See Code Ann. § 81A-112(b).

The heart of count 10 is a claim that what was transferred to Department was an easement only-not fee simple title to the land-and upon failure of the project for which the easement was sought the easement was abandoned and ended.

Count 8 is not by its terms limited to a specific theory, but asserts that the conveyance was limited to the creation of a right of way for I-485, and lost force as a conveyance when this purpose could no longer be realized. Count 8 thus embraces a claim of a conditional fee, or a covenant.

Our question is whether as a matter of law the conveyance may be said to be that of a fee simple or some other estate in land, or whether some issue of fact yet remains to be determined. In conveyancing, the intent of the parties is of prime importance. Johnson v. Valdosta, M. & W. RR. Co., 169 Ga. 559, 563, 150 S.E. 845 (1929); see Code Ann. § 85-503. Department clearly intended to purchase a fee simple estate. This conclusion follows from examination of the laws governing the acquisition. This land was acquired by Department pursuant to the Limited Access Highway Act, Ga.L.1955, pp. 559-564 (Code Ann. § 95-1701a et seq.) (now superceded by the Code of Public Transportation). As we wrote in Sadtler, the legislation required condemning bodies to acquire real property rights in fee simples. The option contract signed by the Knights on this land granted Fulton County the right to acquire the land in fee simple. The deed signed by the Knights contains the following granting clause: 'Now, therefore, in consideration of the benefit to said property by the construction and maintenance of said road, and in consideration of one dollar ($1.00) in hand paid, the receipt whereof is hereby acknowledged, I do hereby grant, sell, and convey to said State Highway Department of Georgia, and their successors in office so much land as to make a right of way for said road as surveyed being more particularly described as follows: All that tract or parcel of land . . .' (Emphasis supplied.) The habendum clause of the instrument of title provides, 'To have and to hold the said conveyed premises in fee simple.'

Our conclusion from the record is that the Knights also intended to convey a fee simple estate. Nothing in their affidavits makes a contrary allegation on this issue. Thus, we have solely a question of law: What estate was actually conveyed by the language of this document under these circumstances? We note initially that every properly executed conveyance 'shall be construed to convey the fee, unless a less estate is mentioned and limited in such conveyance.' Code Ann. § 85-503. Thus, the presumption is that a fee simple was conveyed here, see Frost v. Dixon, 204 Ga. 268, 271-72, 49 S.E.2d 664 (1948) unless the Knights point to language creating a different estate.

We cannot accept the argument that a conditional estate was created. The only basic difference between an estate upon conditional limitation and upon condition subsequent is that upon the stated event the former determines automatically and the latter requires re-entry. Franks v. Sparks, 217 Ga. 117, 121, 121 S.E.2d 27, 31 (1961). 'No precise technical words are required to create a limitation or a condition subsequent and the construction must always be founded upon the intention of the parties as disclosed in the conveyance. However, the words used may serve as guides to construction. Words of time such as 'so long as,' 'while,' 'until,' 'during,' usually denote limitation. Words of qualification or condition such as 'provided,' 'upon condition,' are most often used to create conditions subsequent.' Id. E.g., Atlanta Consolidated Street Ry. Co. v. Jackson, 108 Ga. 634, 34 S.E. 184 (1898) ('so long as'); Lawson v. Georgia S. & F. Ry. Co., 142 Ga. 14, 16, 82 S.E. 233, 234 (1914) ('to have and to hold . . . for railroad purposes only, and for the time that they shall so use it'). See generally Code Ann. Ch. 85-9. No such words appear in the deed before us.

'A deed will not be construed as a grant on condition subsequent unless the language used by express terms creates an estate on condition, or unless the intent of the grantor to create a conditional estate is manifest from a reading of the entire instrument.' Thompson v. Hart, 133 Ga. 540(1), 66 S.E. 270 (1909). Accord, Self v. Billings, 139 Ga. 400, 77 S.E. 562 (1912). The Knights point to the words 'to make a right of way for said road' as constituting a limited purpose. These words do not alone create a conditional estate. Johnson v. Valdosta, M. & W. RR. Co., 169 Ga. 559, 564, 150 S.E. 845, supra; Tift v. Savannah, F. & W. Ry. Co., 103 Ga. 580, 30 S.E. 266 (1897); Lawson v. Georgia S. & F. Ry. Co., supra.

We conclude that this deed conveyed the land in fee simple to Department, and did not grant a mere easement or conditional estate. The deed repeatedly refers to the 'land' which is to be granted, and says the grant is in 'fee simple.'

It is true, as the Knights urge, that there are some flaws and omissions in this deed. It was a form deed, and because all the Knights' land was to be taken, the deed's recital that part of the consideration was the benefit to other lands of grantor was meaningless. This, however, does not void the deed. Harry v. Griffin, 210 Ga. 133(1), 78 S.E.2d 37 (1953). The record shows that other consideration was paid and accepted. The omission of the word 'bargained' from the granting clause; the...