Hasty v. Wilson

• Decision Date: 20 October 1967
• Docket Number: Nos. 24251,24258,s. 24251
• Citation: 158 S.E.2d 915,223 Ga. 739
• Parties: James R. HASTY v. Frances Hood WILSON et al. Frances Hood WILSON et al. v. James R. HASTY.
• Court: Georgia Supreme Court

Page 915

158 S.E.2d 915

223 Ga. 739

James R. HASTY v. Frances Hood WILSON et al.

Frances Hood WILSON et al. v. James R. HASTY.

Nos. 24251, 24258.

Supreme Court of Georgia.

Oct. 20, 1967.

Rehearing Denied Nov. 9, 1967.

Syllabus by the Court

1. This case involves an easement appurtenant.

2. Summary judgment should not have been granted since issues of fact were presented which should be decided by a jury.

(a) Where adverse possession in a private way is claimed by prescription, the party setting up such claim must bring himself strictly within the requirements of the law and show that he has been in the uninterrupted use thereof for 7 years or more, that it does not exceed 20 feet in width, that it is the same number of feet originally appropriated, and that he has kept it open and in repair during such period.

(b) The Uniform Limited Partnership Act of 1952 does not apply to a limited partnership created prior to its effective date in the absence of a showing that it has complied with the provisions of the 1952 Act proscribing the method by which it may come within its provisions.

(1) Under the evidence a question of fact exists as to whether the named general partner in the limited partnership was the sole general partner.

(2) Prior to the 1952 Uniform Limited Partnership Act, limited partners held title to property as tenants in common.

(3) One tenant in common who is in possession of the jointly owned property cannot deprive the other tenants in common who are also in possession thereof

from prescribing adversely against a third party.

3. The allegations of Count 1 of the petition are insufficient to show an express grant of the disputed alley.

4. The allegations of Count 3 are insufficient to show a way of necessity in the disputed alley.

5. The allegations of Count 4 are insufficient to show a dedication of said alley to the public or for a public use.

6. The trial judge correctly ruled on the special demurrers.

7. A witness may properly testify as to what his intention was and although such evidence is not conclusive on the trior of facts, it is to be considered with all the facts and circumstances of the case in determining the real intention of the witness.

8. (a) A party may not testify as to transactions with a deceased where his representative is a party defendant.

(b) An agent may not testify as to transactions with a deceased under circumstances where the principal as a party to the cause is not permitted to testify.

Stone & Stone, Noah J. Stone, Hugh W. Stone, Hurt, Hill & Richardson, James C. Hill, Cicero Garner, Jr., Bonneau Ansley, Jr., Atlanta, for appellant.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, William G. Vance, George B. Haley, Jr., Atlanta, for appellees.

UNDERCOFLER, Justice.

This is an action to enjoin the closing of an alley. It is in four counts claiming an easement on the basis of (1) express grant, (2) adverse use for more than seven years, (3) way of necessity, and (4) public use and dedication. The court sustained general demurrers to Counts 1, 3, and 4, and granted summary judgment to the defendants on Count 2. The plaintiff appeals to this court enumerating as error the rulings on the general demurrers, on certain special demurrers, on the grant of the summary judgment and on the admissibility of certain evidence. The defendants cross appeal enumerating as error the admission of certain evidence.

1. Without elaborating on the niceties of the legal distinctions between easements in gross and easements appurtenant, we hold the question involved herein to concern the latter. See Stovall v. Coggins Granite Co., 116 Ga. 376, 42 S.E. 723.

2. On the hearing of the motion for summary judgment on Count 2, the essential facts show that the plaintiff is the owner of the Imperial Hotel property which fronts 70 feet on the east side of Peachtree Street in Atlanta. The defendants hold title to the property on the north side thereof to Forrest Avenue. The alley in dispute runs north 90 feet from the rear of the Imperial Hotel property, approximately parallel to Peachtree Street, through the defendants' property to Forrest Avenue. The alley is 13.6 feet in width, well defined, with stone walls along a portion of it and paved with large stone blocks set on a sand foundation. The alley has been of the same size and in its present location since about 1937 and used by the various owners of the Imperial Hotel, their tenants, and the public from that time; since 1951 the owners of the hotel have made extensive repairs on the alley and its walls openly and notoriously each year; prior to 1951 the evidence is conflicting as to repairs that were made.

About 1944 Emory University sold the hotel property to the Imperial Hotel Company. On March 1, 1951, the Imperial Hotel Company sold the hotel property to the Imperial Investment Co., Ltd., a limited partnership. Sometime prior to 1951, the property north of the hotel property was purchased by Fred B. Wilson, defendants' predecessor in title. On October 31, 1963, the Imperial Investment Co., Ltd., conveyed the property and the easement in the alley to the plaintiff, James R. Hasty, previously designated as a limited partner of the Imperial Investment Co., Ltd.

Glenn S. Loudermilk, designated as general partner of the Imperial Investment Co., Ltd., individually leased the Imperial Hotel with the exception of the 'Blue Room' on March 1, 1948, from the Imperial Investment Co., Ltd.'s predecessor in title and shortly thereafter, the exact date not appearing in the record, assigned the lease to the Imperial Operating Co., Inc., which continued the operation under its lease until its expiration on September 30, 1958. Glenn S. Loudermilk was the sole stockholder of the imperial Operating Co., Inc.

From prior to 1949 until October 1, 1957, Glenn S. Loudermilk individually leased the property north of the hotel property and east of the alley together with the right to use said alley. Beginning October 1, 1957 he leased from Fred B. Wilson for a period of 10 years including renewal options all property north of the hotel property and at the time of the filing of this suit was still a tenant of said property.

(a) 'While a right of private way over another's land may arise by prescription from seven years' uninterrupted use through improved lands, Code §§ 85-1401, 83-112; Rogers v. Wilson, 171 Ga. 802(4), 156 S.E. 817, where, as in this case, a private way is claimed by prescription, the party setting up such claim must bring himself strictly within the requirements of the law, Nott v. Tinley, 69 Ga. 766, and in order to set up such prescriptive right of way, it is essential that the prescriber show, not only that he has been in the uninterrupted use thereof for seven years or more, that it does not exceed fifteen feet (now 20 feet (Ga.L.1953, Nov.Sess., p. 98)) in width, and that it is the same number of feet originally appropriated, but also that he has kept it open and in repair during such period. Woolbright v. Cureton, 76 Ga. 107; Collier v. Farr, 81 Ga. 749, 7 S.E. 860; Aaron v. Gunnels, 68 Ga. 528; Hall v. Browning, 195 Ga. 423, 424(1), 24 S.E.2d 392.' Burton v. Atlanta & West Point Railroad Co., 206 Ga. 698(1), 58 S.E.2d 424.

'Prescription is the right to property which a possessor acquires by reason of the continuance of his possession for a period of time fixed by law. Such possession to be the foundation of a prescription must be in the right of the possessor, and not of another, and must be public, continuous, exclusive, uninterrupted, and peaceable, and be 'accompanied by a claim of right.' Code §§ 85-401, 85-402. 'Adverse possession is usually a mixed question of law and fact-whether the facts exist which constitute adverse possession, is for the jury to judge. Whether, assuming the facts proven to be true, they constitute adverse possession, is for the court to decide.' Thompson v. Fouts, 203 Ga. 522(2), 47 S.E.2d 571. An inchoate prescriptive title may be transferred by the possessor to a successor, so that the successive possessions may be tacked to make out the prescription. Code § 85-416.' Olsen v. Noble, 209 Ga. 899, 904, 76 S.E.2d 775. The claim of right or title may be evidenced by acts or conduct in relation to the property possessed which are inconsistent with the true owner's title. Ewing v. Tanner, 184 Ga. 773, 780, 193 S.E. 243; Allen v. Allen, 196 Ga. 736, 744(2), 27 S.E.2d 679; Collier v. Farr, 81 Ga. 749, 753, 7 S.E. 860; Nassar v. Salter, 213 Ga. 253, 255, 98 S.E.2d 557. In other words, the plaintiff's claim of prescriptive title is dependent upon whether or not he and his predecessor in title, the Imperial Investment Co., Ltd., were adversely using the alley under a claim of right. Olsen v. Noble, 209 Ga. 899, 905, 76 S.E.2d 775; Cook v. Gammon, 93 Ga. 298, 20 S.E. 332.

(b) The defendant raises the question that the Imperial Investment Co., Ltd., acquired no prescriptive rights in the alley for the reason that Glenn S. Loudermilk was the sole general partner of the Imperial Investment Co., Ltd., and that since he was leasing individually a portion of the adjoining property including the right to use the alley during the time he was such sole general partner, prescription could not run in favor of the partnership while he was in such possession.

The defendant then argues that since Glenn S. Loudermilk's interest as sole general partner terminated on January 1, 1958, and the Imperial Operating Co., Inc.'s lease expired on September 30, 1958, the plaintiff has not had the required statutory 7 years' possession since that time which is necessary to establish a prescriptive right in the alley as a matter of law.

We believe the contentions of the defendant are unsound for the following reasons: The evidence regarding the partnership ownership of the hotel shows that title to the hotel property was taken in the name of Imperial Investment Co., Ltd., a limited partnership composed of ...