Hendley v. Overstreet, s. 40969

• Decision Date: 02 July 1984
• Docket Number: Nos. 40969,40970,s. 40969
• Citation: 318 S.E.2d 54,253 Ga. 136
• Parties: HENDLEY et al. v. OVERSTREET et al. OVERSTREET et al. v. HENDLEY et al.
• Court: Georgia Supreme Court

Page 54

318 S.E.2d 54

253 Ga. 136

HENDLEY et al. v. OVERSTREET et al.

OVERSTREET et al. v. HENDLEY et al.

Nos. 40969, 40970.

Supreme Court of Georgia.

July 2, 1984.

Cecil D. DeLorme, Eugene McCracken, Joseph Saseen, Savannah, for Henry Overstreet et al.

J. Hamrick Gnann, Jr., Gannam & Gnann, Savannah, for Johnny T. Hendley et al.

CLARKE, Justice.

This appeal concerns the title to and use of two lots in a subdivision known as the Isle of Armstrong. In 1952 R.E. Armstrong, the developer, recorded a plat of survey showing lots, lanes and streets in Chatham County. In 1954 he recorded a "Declaration of Restrictive Covenants" which included the following provision: "13. Lots Numbers Five (5) and Six (6) in said Subdivision have been and are hereby dedicated to the use of a park or recreational area for the benefit of the residents of said Subdivision and their guests." A second Declaration of Restrictive Covenants, identical to the first, was recorded in 1958.

After the lots in question were conveyed to an association and subsequently sold at a tax sale, owners of other lots in the subdivision sued the purchasers. The plaintiffs sought a declaratory judgment establishing their rights and an injunction to preserve those rights. The trial court granted relief and we affirm.

The appellants argue that the provisions of the Declaration of Restrictive Covenants do not affect their title. In doing so, they rely on their position as innocent purchasers without notice, the twenty-year limitation on certain restrictions and the extinguishment of appellees' rights by the tax sale.

The trial court found that those of the appellees whose title is derived from a deed containing a grant of right to use lots 5 and 6 enjoy an easement. It is well settled that when a subdivision contains an attraction such as a park or lake which renders the lots more desireable, the sale of lots in reference to a plat showing the attraction will create an irrevocable easement in such an area for the lot owners. Walker v. Duncan, 236 Ga. 331, 223 S.E.2d 675 (1976). Stanfield v. Brewton, 228 Ga. 92, 184 S.E.2d 352 (1971). The rationale is that lot owners have paid a higher consideration for lots because of the presence of that attraction. We find that the same is true where the lot owners have purchased lots by deeds which make specific reference to the Declaration of Restrictive Covenants.

The finding of easements' being held by the lot owners overcomes arguments of the...