East Beach Properties, Ltd. v. Taylor

• Decision Date: 09 July 2001
• Docket Number: No. A01A0028-A01A0030.
• Citation: East Beach Properties, Ltd. v. Taylor, 250 Ga.App. 798, 552 S.E.2d 103 (Ga. App. 2001)
• Parties: EAST BEACH PROPERTIES, LTD. v. TAYLOR et al. Taylor et al. v. Ryals. Ryals v. Taylor et al.
• Court: Georgia Court of Appeals

552 S.E.2d 103

250 Ga. App. 798

EAST BEACH PROPERTIES, LTD. v. TAYLOR et al.

Taylor et al. v. Ryals.

Ryals v. Taylor et al.

Nos. A01A0028-A01A0030.

Court of Appeals of Georgia.

July 9, 2001.

Reconsideration Denied July 31, 2001.

Abbott & Abbott, Anthony H. Abbott, Laurie K. Abbott, Savannah, for East Beach Properties, Ltd.

George M. Rountree, Brunswick, for Taylor et al.

Christopher J. O'Donnell, Brunswick, for Ryals.

BLACKBURN, Chief Judge.

The land involved in this case has been the subject of litigation for over 30 years. The case involves a dispute over the extent of the permissible use of easements owned by lot owners in the East Beach subdivision of St. Simons Island. The easements have been previously defined by our Supreme Court in Smith v. Bruce¹ and Bruce v. Garges.² Several suits concerning the use of these easements were filed and consolidated in the Superior Court of Glynn County. The trial court entered a judgment as a matter of law, and several parties appeal. The consolidated appeals are decided herein.

In Smith, the Supreme Court held that the then owners of the underlying fee, part of which is now owned by East Beach Properties, Ltd. and part by Glynn County, owned the land between the street that ran along the subdivision and the mean high water line, subject to the rights of the lot owners of the East Beach subdivision. The Court held that each lot owner owned an easement "to use such open area as a soft beach for all recreational purposes soft beaches can be used for, and as a means of ingress and egress from the subdivision lots and streets to the smooth, hard beach area and ocean." Smith, supra at 142(1), 244 S.E.2d 559.

We turn now to the recent developments. Philip Taylor and 32 other lot owners³ in the East Beach subdivision (hereinafter referred to as the "Taylor Group") filed an action to enjoin James Timbes, another lot owner, and his contractor, Winston Ryals d/b/a J.R. Construction, from "clear-cutting" a portion of the natural growth of wild scrub on the land subject to the easement. The Taylor Group also requested nominal and punitive damages and attorney fees.

Timbes filed a counterclaim, seeking a declaratory judgment that he be allowed to mow, clear, and grade the property as an exercise of his unlimited easement rights as set forth in Smith and later discussed in Bruce. Paula Carol and some other lot owners⁴ filed a separate action against the Taylor Group and East Beach Properties and others. When the actions were consolidated in the trial court, the Carol Group's action was aligned with James Timbes (collectively referred to as the "Timbes Group").

The basic contentions of the parties are as follows: The Taylor Group contends that the Timbes Group's alteration of the property impaired its right to use the easement for beach access and recreation. The Timbes Group contends that pursuant to Smith and Bruce, they have the unfettered right to make physical alterations to the property so long as the other property owners are not denied access to the beach. They maintain that clearing the land facilitates rather than hampers the recreational use of the property. East Beach Properties, the owner of part of the underlying fee, contends that it has the right to make alterations, including building on the property so long as such alterations do not interfere with the easement rights of the lot owners. East Beach Properties also contends that the easement rights do not extend to the accreted land.

The trial court ruled that the Taylor Group lacked standing to enjoin the Timbes Group from altering the easement property by removing vegetation because this conduct did not impair their right to use the easement for beach access or recreation. The trial court also ruled that East Beach Properties was entitled to bar any alterations to the property that exceed what is necessary to permit beach access by the lot owners. It further ruled that East Beach Properties and its invitees were authorized to use or alter the easement property in any manner that "does not interfere with beach access and customary soft sand beach activities by said lot owners," and that does not interfere with the lot owners' use of their easement.

The trial court also ruled that James Timbes and the other lot owners were enjoined from altering the vegetation on the land subject to the easement beyond what is absolutely necessary to permit access to the beach on foot, without first obtaining consent from East Beach Properties on the land owned by East Beach Properties and a permit from Glynn County on the land owned by the County.

Case No. A01A0028

East Beach Properties appeals the trial court's order, contending that the trial court erred by ruling that (1) the filing of a certain plat by the developer of the property represented to prospective buyers that there was no real property subject to future development between Beach Drive and the Beach; (2) the filing of the plat was the functional equivalent to a covenant running with the land on the subject property; (3) the development of the accreted property may be effectively precluded because the lot owners have a nonexclusive right to the entire accreted property pursuant to Smith, supra; (4) East Beach Properties could not construct buildings and other improvements that do not substantially interfere with the easement; and (5) the trial court could not define what East Beach Properties could do on the property without violating the rights of the easement holders because the rights of the easement holders had not sufficiently accrued within the meaning of the Declaratory Judgment Act.

1. In its first two enumerations of error, East Beach Properties argues that the ruling in Smith does not establish that there was no real property subject to future development on the beach. We disagree because this issue was already resolved in Smith and Bruce.

In Smith, supra at 142(1), 244 S.E.2d 559, the Supreme Court held that each lot owner had an easement "to use such open area as a soft beach for all recreational purposes soft beaches can be used for, and as a means of ingress and egress from the subdivision lots and streets to the smooth, hard beach area and ocean."

After Smith, the land between the high water line and the street continued to accrete. In Bruce, the Bruces, the former owners of the underlying fee now owned by East Beach Properties, appealed the trial court's refusal to limit the easement to the original area subject to the easement prior to the accretion of the land. Our Supreme Court upheld the trial court's decision, determining that the Smith Court "did not intend to limit the lot owners' recreational use to any area less than that which lies between the high water line and East Beach Drive and which is subject to expansion or contraction by the forces of nature." Bruce, supra at 271(3)(b), 379 S.E.2d 783. The Bruce Court concluded that "just as the rights of the fee holder expand with the accreted land, so do the rights of the easement holder where such a broad grant has been made." Id. at 272(3)(b), 379 S.E.2d 783. Thus, as the facts stand, the property subject to the easement can only be developed in the future subject to the rights of the lot owners despite the accretion of the property. We cannot revisit issues decided by the Supreme Court.

In two enumerations of error, East Beach Properties argues that the trial court erred by ruling that the development of the accreted property may be precluded because of the lot owners' nonexclusive right to use the property set forth in Smith. East Beach Properties asserts that because the topography of the accreted land has naturally evolved over the years to be more maritime forest-like, the lot owners' easement in the soft sand beach "is no longer applicable to the accreted land." Again, this issue in controlled adversely to East Beach Properties by Bruce.

2. East Beach Properties asserts that the trial court's order conflicts with Upson v. Stafford,⁵ in which this Court held that one of the owners of a nonexclusive easement lawfully constructed a drainage ditch on the property subject to the easement because such construction did not encroach upon the second easement holder's rights. Id. at 616, 422 S.E.2d 882. The first easement holder also lawfully removed trees that had served as a buffer between the easement holders' separate tracts of land because the second easement holder had "no right to a buffer of trees, either expressly or as a reasonably necessary incident of any of the purposes of his easement." Id. This Court also acknowledged that "unless the easement is exclusive, the grantor may construct buildings or other improvements on the land which do not `substantially interfere' with the enjoyment of an easement previously granted." Id.

East Beach Properties asserts that, under Upson, it should be allowed to construct buildings and other improvements that do not substantially interfere with the easement. In upholding the trial court's ruling, we emphasize that the trial court did not rule that no development of the land could take place. Rather, the trial court ruled that East Beach Properties had not submitted a proposed plan and thus its ruling on what structures could be erected would be an advisory opinion, which is prohibited by the Declaratory Judgment Act. The court commented that, given the broad grant given to the lot owners, "development (except perhaps as a purely recreational area without residential or commercial structures) may be effectively precluded." Indeed, our Supreme Court has held that the owner of the underlying fee cannot develop the property to the extent it interferes with the easement holder's rights. Fairfield Corp. No. 1 v. Thornton.⁶

3. East Beach Properties argues that the trial court erred by ruling that it could not define what it could do with the property without violating the easement holders' rights because...